“The American Judiciary Has Never Taken a Very Broad View of Property Rights”:

Ilya argues that this statement of mine “goes too far,” and says that “prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today.” There’s much in Ilya’s post with which I agree; certainly, to quote his post title, “judicial protection for property rights really did decline” starting with the New Deal, and hasn’t substantially rebounded.

But it still seems to me that the protection offered property rights during that era was not “very broad,” though it was broader than it is now. To give some examples: The Lochner-era Court upheld zoning laws. It upheld billboard bans. It upheld alcohol bans (even before the Eighteenth Amendment) and bans on lotteries. It upheld bans on pool halls. Though it struck down maximum hours laws in Lochner, it upheld them for women, surely a restriction on liberty of contract (even setting aside the equal-treatment-for-women arguments that obviously wouldn’t have been appealing then). Though it struck down price controls and other highly burdensome economic regulations in various contexts, it also upheld rent controls, usury laws, time-and-half overtime laws, and other regulations. Among other things, the notion of a police power to regulate conduct and the use of property in order to protect the public’s health, morals, safety, and welfare was often read quite broadly, which kept the protection of property rights from being very broad.

As Ilya points out, some state courts at times provided more protections to property, contract, and general liberty of conduct. For instance, some state courts did strike down alcohol bans. But the dominant trend in state courts, to my knowledge, was in favor of upholding alcohol bans. And I don’t think that the bulk of state courts provided “very broad” protection to property rights during that era, even if some sometimes provided somewhat more than the Supreme Court did.

Finally, I agree with Ilya that “nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights.” But this doesn’t mean courts took a very broad view of property rights, since they generally didn’t take a very broad view of other rights — they certainly didn’t take such a broad view of free speech rights, for instance (as Ilya agrees). My point was, and is, simply that property rights protections were not “very broad” at the time — not broad enough to secure a right to burn a flag that one owns (the example that triggered the post), and generally speaking not very broad in many other ways as well.