At this year’s National Lawyer’s Convention, the Property and Environmental Law Practice Group is hosting a panel consistent with the Convention’s overarching theme: Originalism and Constitutional Property Rights.
Constitutional property was regarded as a disreputable field for a couple of generations after the New Deal. Today, however, the field is one of the most controversial fields of constitutional law. In its 2005 decision in Kelo v. New London, the U.S. Supreme Court held that the phrase “public use” in the Fifth Amendment’s Takings Clause does not stop a state or local government from condemning property owned by one private party and then transferring that property to another party to promote economic development consistent with a development plan. Kelo may be the most criticized U.S. Supreme Court case in the last 30 years. The decision spurred many lawyers to wonder whether property rights should be protected more strongly than they were Kelo and the precedents Kelo followed. In addition, the Supreme Court has heard several prominent cases about so-called “regulatory takings” and “exactions” in the last five years. And in a dissent in the 2017 case Murr v. Wisconsin, Justice Thomas called for lawyers and scholars to clarify whether and where regulatory takings principles have any basis in the Constitution.
Constitutional property rights are fascinating because they are tied up with a lot of the most controversial constitutional doctrines. The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal. In that period, however, the Court protected property via the Due Process Clauses in the Fifth and Fourteenth Amendment—via the same substantive due process doctrines it enforced in the 1905 decision Lochner v. New York.
Substantive due process was repudiated during the New Deal for a variety of reasons—among others, because New Deal lawyers and scholars believed that it had no basis in the text of the Constitution. At the same time, however, lawyers and scholars believed that the Fourteenth Amendment’s Due Process Clause “incorporated” most of the rights-guarantees in the Bill of Rights. And since the Fifth Amendment has a Takings Clause, property rights couldn’t be neglected as what Chief Justice Rehnquist called a “poor sister” as long as the Court was enforcing the First, Fourth, Fifth, and Eighth Amendments on states.
The Court never totally repudiated substantive due process doctrine, and the doctrine continues to be applied in some contexts in contemporary litigation. But thanks to incorporation, in the 1980s and 1990s, the Supreme Court started to develop Takings Clause doctrines that imposed serious limitations on states and local governments. Loretto v. New York City held that a state or local government inflicts a per se taking if it orders an owner to submit to a physical invasion of property. Nollan v. California Coastal Commission and Dolan v. City of Tigard held that a state or local government violates takings-based unconstitutional conditions doctrines if it leverages its power to regulate land use to pressure owners to give some land to it. And Lucas v. South Carolina held that a state or local government inflicts a per se taking when a regulation deprives an owner of all economically beneficial use of his property.
Cases like these have spurred many serious scholarly inquiries into the original meaning of the Fifth Amendment. As originalist scholarship has matured, however, scholars have also started to reconsider the incorporation account of the Fourteenth Amendment. It could be that property rights are protected from state or local interference, not via the Fifth Amendment and incorporation, but instead via the Privileges or Immunities Clause—or even because substantive due process is part of the original meaning of the Fourteenth Amendment Due Process Clause.
So are property rights protected under the Constitution, and if so under which clause and how? Four accomplished property scholars will discuss these issues: Eric Claeys, Richard Lazarus, Thomas Merrill, and Ilya Somin. We invite you to join us on Saturday, November 16 at 11:00 am ET at the Mayflower Hotel for the convention or via live stream on the Federalist Society website.