The recognition from the perspective of natural, constitutional, statutory, or common law of the extent to which individuals, business entities, or organizations may acquire, keep, use, and dispose of tangible or intangible things free from interference by others.
The Supreme Court’s involvement with property rights issues derives mainly from the Fifth Amendment,
Justice Samuel Chase regarded laws that take property from one person and give it to another are contrary to the first principles of the social compact.
The protection of property rights under the procedural rather than the substantive component of the due process clause was less controversial. However, during and after the 1970’s the concept of property used in procedural due process discussions came to include positive legal rights created by regulatory legislation. Thus, the Court formulated procedures that must be followed when the government deprives a person of such modern legislative entitlements as welfare benefits and civil service employment.
The Fifth Amendment also contains the takings clause
The early justices on the Court shared the view of the founders of the nation that government was instituted to protect the life, liberty, and property of each person. Thus, in Calder v. Bull
The adoption of the Fourteenth Amendment left open the question of the extent to which the Court would apply the due process clause of that amendment to protect private property rights from encroachment by state and local governments. In the Slaughterhouse Cases
In Munn v. Illinois
In dissent, Justice Stephen J. Field
In the closing decades of the nineteenth century, Field’s views regarding the Fourteenth Amendment and property rights became the majority view of the Court. In several decisions, the Court held that state legislation affecting property rights violated the Fourteenth Amendment due process clause. This notion of substantive due process protection of property rights continued until the mid-1930’s. Many of these cases invoked the liberty component of the due process clause to protect freedom of contract. For example, in Allgeyer v. Louisiana
An early exception to the substantive due process protection of property rights emerged in the context of zoning
The Court disagreed with the position of the property owner, holding instead that general zoning regulations satisfy the requirements of the Fourteenth Amendment due process clause unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare of the community. Although the precise holding of Euclid was limited to the context of injunctive relief, the practical effect of this decision was to make it almost impossible to challenge zoning regulations under a due process theory for many decades. Accordingly, when the resurgence of Court recognition of property rights in zoning cases finally came, it arrived under the rubric of the Fifth Amendment takings clause (as applied to states and their political subdivisions by the Fourteenth Amendment), not under a due process theory.
The stock market crash of 1929 and the ensuing Great Depression led to President Franklin D. Roosevelt’s New Deal
President Franklin D. Roosevelt.
President Roosevelt’s attempt to increase the number of justices sitting on the Court (in order to allow him to appoint justices favorably disposed toward New Deal legislation) led to a revolution in Court jurisprudence in economic matters. For example, in United States v. Carolene Products Co.
After decades of quiescence, the constitutional protection of property rights began a long journey toward renewed recognition in the late twentieth century. In Lynch v. Household Finance Corp.
The plurality opinion observed that it is difficult to draw a line between personal liberties and property rights with any consistency or principled objectivity. Accordingly, the dichotomy between personal liberties and property rights is a false one. The right to enjoy property without unlawful deprivation is as much a “personal” right as is the right to speak or the right to travel. A fundamental interdependence exists between the personal right to liberty and the personal right in property. In articulating this position, the plurality opinion cited such classic statements of property rights as John Locke’s Of Civil Government (1690) and Sir William Blackstone’s Commentaries (1765-1769).
Although Lynch appeared to presage the possible rehabilitation of substantive due process to protect property rights, no such reprise of economic due process occurred. Rather, the Court confined its renewed interest in property rights to the takings clause.
In Pennsylvania Coal Co. v. Mahon
The Court has recognized a variety of property interests as being “private property” within the meaning of the takings clause, for example, contracts (Lynch v. United States, 1934), leaseholds (United States v. General Motors Corp., 1945), air space (United States v. Causby, 1946), an interpleader fund and the interest accruing thereon (Webb’s Fabulous Pharmacies v. Beckwith, 1980), trade secrets (Ruckelshaus v. Monsanto Co., 1984), fractional interests in land (Babbit v. Youpee, 1997), and interest earned on state-mandated attorney trust accounts (Phillips v. Washington Legal Fund, 1998). In Phillips, the Court restated its well-established principle that property is more than economic value, also consisting of the group of rights that an owner exercises over a thing, such as the right to possess, use, and dispose of it.
During and after 1987 the Court used the takings clause to foster greater protection of property rights in land. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles
In Dolan v. City of Tigard
The Court has sometimes recognized legislative entitlements
Therefore, in Cleveland Board of Education v. Loudermill
During the 1990’s the Court continued to apply only a rational basis test to property rights cases brought under the substantive component of the due process clauses. For example, in United States v. Carlton
In Eastern Enterprises v. Apfel
Thus, the Court continued its decades-long refusal to invoke substantive due process to invalidate economic legislation. However, the Court showed increasing willingness to consider the protection of property rights under the Fifth Amendment takings clause.
James W. Ely, Jr.’s The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed., New York: Oxford University Press, 1998) contains an overview of the constitutional history of property rights. The Framers’ view of property rights is set forth in The Federalist (1788), especially in essay No. 10 by James Madison. However, Charles A. Beard claimed in An Economic Interpretation of the Constitution of the United States (New York: Free Press, 1913) that the Framers were motivated by their own personal economic interests. Beard’s view was challenged by Robert E. Brown in his Charles Beard and the Constitution: A Critical Analysis of “An Economic Interpretation of the Constitution” (New York: W. W. Norton, 1956) and Forrest McDonald in We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958). Richard A. Epstein’s Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985) was influential in the growing movement to use the takings clause for protection of property rights. Epstein elaborated a more comprehensive position in Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Reading, Mass.: Perseus Books, 1998). Bernard H. Siegan’s Property and Freedom: The Constitution, the Courts, and Land-Use Regulations (New Brunswick, N.J.: Transaction, 1997) discussed the Court’s takings decisions from a pro-property rights perspective. Cass R. Sunstein’s After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Mass.: Harvard University Press, 1990) attempted to set forth constitutional principles favorable to a regulatory state, and Bernard Schwartz directly opposed the resurgence of property rights protection in The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990).
Bronson v. Kinzie
Contract, freedom of
Due process, procedural
Due process, substantive