In his most recent post on our debate, Eugene agrees with my view that judicial protection for property rights has declined substantially since the New Deal period, but claims that judicial protection for property rights was “not very broad” even before then.
It is true that pre-New Deal courts did not protect property rights as much as many libertarians would want. However, they did provide quite extensive protections for property rights that went far beyond what we have today. Certainly, cases such as Berman v. Parker, Kelo, Poletown, and various modern regulatory takings decisions would probably have come out the other way before the New Deal. Under pre-New Deal jurisprudence, hundreds of thousands of people would not have been expelled from their homes by “economic development,” blight, and “urban renewal” takings. This alone shows that the difference between pre-New Deal and modern property rights jurisprudence was both stark and laden with important real-world consequences.
It is certainly true that pre-New Deal courts did not provide absolute protection for property rights. No constitutional right ever gets complete protection from judges, and none is totally immune to being overriden by competing considerations. On the other hand, many of the cases Eugene cites as upholding limits on property rights actually involved restrictions on economic liberties with little or no connection to property ownership. That is true of the examples he gives involving freedom of contract, maximum hours laws, restrictions on the sale of alcohol, bans on lotteries, and others. Pre-New Deal courts generally gave stronger protection for property rights (which were specifically enumerated in federal and state constitutions) than other economic liberties (most of which were implied from the Due Process Clause of the Fourteenth Amendment). The Supreme Court’s endorsement of zoning in Village of Euclid v. Ambler Realty (1926) really did lead to substantial infringements on property rights. But this case came near the very end of the pre-New Deal era, and the Court’s opinion did not extend the kind of categorical blank check for zoning that later decisions provided. Rather, the Euclid majority opinion emphasized that its decision was limited to the specific type of zoning considered in that case, and that other forms of zoning might still be constitutionally suspect.
Ultimately, the disagreement between us may not be that great. We seem to agree that there was a significant decline in judicial protection for property rights after the 1930s. We also agree that pre-New Deal courts upheld various restrictions on property. Perhaps we differ only on what counts as “broad protection.” In my view, there is a huge difference between courts that allow thousands of people to be forcibly expelled from their homes so that the land can be transferred to private parties, and ones that would forbid such takings because they are not for a “public use” as required by the Fifth Amendment. There is also a huge difference between a jurisprudence that denies compensation for nearly all regulatory takings and one that provides it for a fairly wide range of them. Banning such practices (along with a number of other restrictions on property rights) falls far short of a property rights utopia. But it certainly counts as “very broad protection” in my book – especially compared to the modern alternative. In my view, protection that is far better than nothing can reasonably be considered “very broad.” Perhaps Eugene meant to say that the term “very broad” applies only to near-absolute protection for a right. If so, however, he is attacking a straw man, since no serious commentator argues that the courts have ever provided such near-absolute protection for property (or any other right). In the blog post that touched off this debate, David Henderson claimed only that Eugene’s analysis of flag burning shows “how far the courts have moved away from defending property rights.” Henderson did not say that the courts ever protected property rights absolutely, or even came close to doing so.
In any event, my main purpose was to show that pre-New Deal Courts provided far greater protection for property rights than exists today, and that the difference between the two has major real world effects. Whether the term “very broad protection” applies is less important.