Property Rights (Update)

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The rehnquist court has shown an interest in property rights not seen since the 1930s, and has mounted a number of rhetorical challenges to the sixty-year-long tradition of affording economic liberties less protection than "personal" rights, most notably the statement of Chief Justice william h. rehnquist in dolan v. city of tigard (1994) that "the Takings Clause of the Fifth Amendment is as much a part of the Bill of Rights as the First Amendment of Fourth Amendment, [and] should [not] be relegated to the status of a poor relation." Yet the Supreme Court has fallen short of renewing the constitutional protections enjoyed by property in the heyday of economic due process, and some of its recent expansions highlight unorthodox connections between property and defendants' rights.

The Court's most prominent demonstration of its renewed interest in property has been its increased willingness to hear cases concerning alleged violations of the eminent domain, or taking of property clause, and to hold that government action not involving direct physical appropriation triggers the obligation to pay just compensation under that clause. In lucas v. south carolina coastal council (1992), for example, the Court held that a land use restriction that left property without "economically beneficial use" was a per se taking, regardless of how weighty a public purpose it served. Perhaps more than any other single recent case, Lucas has led property owners to pursue regulatory takings claims, often trying to convince courts to treat separately a particular part of their property or a particular strand in their bundle of property rights to determine that the part was deprived of all economically beneficial use. In two other widely publicized cases, Nollan v. California Coastal Commission (1987) and Dolan, the Court decided that a government could condition a land use permit on donation of an interest in land to the public only if the donation mitigated some impact of the permitted use, and only if the donation were "roughly proportional" to that impact.

The due process of law clauses of both the Fifth Amendment and the fourteenth amendment have also continued to be a textual basis for Rehnquist Court decisions protective of property rights. In BMW of North America v. Gore (1996), the Court held that "grossly excessive" awards of punitive damages violated the doctrine of substantive due process. In Eastern Enterprises v. Apfel (1998), the decisive concurring opinion of Justice anthony m. kennedy also relied on substantive due process in striking down a statute that required companies to contribute to a health benefits fund because they had employed beneficiaries as coal miners over thirty years before the statute's passage. Some of the Court's most ardent defenders of property rights, however, did not join in these invocations of due process, no doubt in part due to antipathy toward the doctrine's use to support a right to abortion in roe v. wade (1973), and, with regard to BMW of North America, in part due to the view that limiting punitive damages protects "defendants rights" rather than "property rights," while curtailing the states' traditional power to punish reprehensible behavior.

The view that forfeiture cases concern "defendants' rights" rather than "property rights" may help to explain the voting lineups in a number of other closely decided recent cases that nonetheless define and protect property rights. In United States v. James Daniel Good Real Property (1993), for example, a bare majority of the Court held that the seizure of real property subject to civil forfeiture without prior notice and opportunity to be heard was a violation of procedural due process. In Bennis v. Michigan (1996), a bare majority rejected the claim that forfeiture of a woman's interest in a car in which her husband had, unbeknownst to her, engaged in illegal sexual activity with a prostitute violated the due process of law and takings clauses. And in United States v. Bajakajian (1998), a bare majority held for the first time that a punitive forfeiture grossly disproportional to the defendant's offense violated the excessive fines clause. The four Justices most sympathetic to takings clause claims—William H. Rehnquist, sandra day o'connor, antonin scalia, and clarence thomas—rejected the constitutional claims in the first two of these cases, and only Thomas, in a pivotal vote that may begin to define him as the Court's most consistent libertarian, recognized the constitutional claim in Bajakajian.

On the issue whether the "property" protected by the federal Constitution is defined by positive subconstitutional law or by some independent method of reasoning or traditional understanding, the Court's position remains ambivalent—an ambivalence that can be found within the writings of individual Justices. Scalia, for example, seemed to draw on a nonpositivist definition when he wrote in Nollan that "the right to build on one's own property—even though its exercise can be subject to legitimate permitting requirements—cannot remotely be described as a 'governmental benefit.' " Yet he appealed explicitly to a positivist definition in Lucas where he wrote that "the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by 'existing rules or understandings' " about property.

Ultimately, the Court is unlikely to strike down, on a nonpositivist theory of the substantive protection of property, a legal rule of long standing in a particular jurisdiction. That unlikeliness may be seen as a result either of an inability to construct a sufficiently strong nonpositivist theory, or of a faith that long-standing Anglo-American legal rules in fact substantially embody the correct theory. This latter resolution may be suggested by Scalia's comment in Lucas that state common law principles "rarely support prohibition of the 'essential use' of land"—as presumably they should not under the correct nonpositivist theory.

When the constitutional challenge is to a recent change in law, the positivist approach reveals itself as incomplete. For if the Court is unlikely to strike down rules of long standing, it is equally unlikely to strike down all recent changes in law. Yet the positivist approach, while reframing the question of property protection in terms of legal change, does not identify which changes concern "property" in the constitutional sense, nor which of that set of property-related changes are constitutional or unconstitutional. The issue of defining which changes in law concerned "property" within the meaning of the takings and due process clauses recently split the Court in Eastern Enterprises v. Apfel (1998). Five members of the Court concluded that the "property" protected by the takings clause is restricted to specific, identified property interests, and does not extend to general liabilities to pay money. Those same five, however, concluded that the creation of a general liability could deprive a person of property without due process within the meaning of the due process clause (an issue pointedly avoided by the four Justices who relied on the takings clause). They then split on the issue whether the challenged law actually did violate substantive due process, reflecting continuing disagreement over the process of winnowing constitutional from unconstitutional changes in law. This disagreement surely will persist as the Court faces the next wave of constitutional property litigation over so-called deregulatory takings.

Robert Brauneis


Brauneis, Robert 1996 "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal v. Mahon. Yale Law Journal 106:613–702.

Ely, James W., Jr. 1992 The Guardian of Every Other Right: A Constitutional History of Property Rights. Oxford, England: Oxford University Press.

Fischel, William A. 1995 Regulatory Takings: Law, Economics, and Politics. Cambridge, Mass.: Harvard University Press.

Levy, Leonard W. 1996 A License to Steal: The Forfeiture of Property. Chapel Hill: University of North Carolina Press.

Paul, Ellen Frankel and Dickman, Howard, eds. 1990 Liberty, Property and the Future of Constitutional Development. Albany: State University of New York Press.

Radin, Margaret Jane 1993 Reinterpreting Property. Chicago: University of Chicago Press.

Rose, Carol 1994 Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership. Boulder, Colo.: Westview Press.

Sidak, J. Gregory and Spulber, Daniel F. 1997 Deregulatory Takings: The Competitive Transformation of Network Industries in the United States. Cambridge, England: Cambridge University Press.