Columnist Steve Chapman quotes an interesting passage from Barack Obama’s book The Audacity of Hope, where Obama praises constitutional property rights:
Our Constitution places the ownership of private property at the very heart of our system of liberty…. The result of this business culture has been a prosperity that’s unmatched in human history…. Our greatest asset has been our system of social organization, a system that for generations has encouraged constant innovation, individual initiative and the efficient allocation of resources.
I. Judicial Protection for Property Rights and Obama’s Legal Philsophy.
This is a fairly strong statement. Obama doesn’t merely say that the Constitution offers some small degree of protection for property rights. He writes that it “places the ownership of private property at the very heart of our system of liberty.” That implies that property rights should get more protection than the distinctly second-class status they have been relegated to under the Supreme Court’s current jurisprudence.
Stronger protection for constitutional property rights would also be consistent with Obama’s more famous statement calling for the appointment of judges who have “[t]he empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” As David Beito and I discussed in this article, African-Americans, the poor, and the politically weak tend to be the biggest victims of government violations of property rights. Since World War II, hundreds of thousands of people – most of them poor minorities – have been forcibly displaced by “blight” and “economic development” condemnations.
II. What Will Obama Actually Do?
Will Barack Obama actually appoint judges who adhere to the notion that the protection of property rights is a at “the very heart” of the Constitution, and whose “empathy” for the minority poor leads them to view takings with a skeptical eye? I have my doubts. Although the backlash against Kelo v. City of New London has stimulated support for property rights in many liberal and left-wing quarters (see Part I of this article), the liberal legal establishment remains strongly opposed to any increase in judicial protection for property rights.
Obama has said that he wants to appoint justices similar to Stephen Breyer and David Souter. These justices – like nearly all the other prominent liberals in the federal judiciary – have consistently voted against property rights in almost every major case for the last 20 years (see this article for the details). To find politically liberal jurists more sympathetic to property rights, Obama would have to look beyond the federal legal establishment and reach out to appoint judges from the state courts (where some liberal Democratic jurists have ruled in favor of stronger property rights protection under their state constitutions) or to activist groups such as the NAACP Legal Defense Fund, which filed a strong pro-property rights amicus brief in Kelo emphasizing the ways in which eminent domain abuse targets the minority poor. On balance, I doubt that Obama values property rights enough to go so far afield in choosing his judicial nominees.
There is also a lot the new president can do to strengthen protection for property rights through the political process. In this April op ed I noted several possibilities:
The [next] president can also help protect property rights through the legislative process. In 2005, the House of Representatives passed the Property Rights Protection Act, which would have denied federal economic-development funds to local governments that engage in Kelo-style takings. Unfortunately, the PRPA died in the Senate, and is now stuck in committee in the House. Strong presidential support could well force its passage. The next president should also work to broaden its scope, which in its current form would only apply to a very narrow range of federal grants. Denial of federal funds would create a strong incentive for states and localities to respect property rights.
Finally, the next president could strengthen President Bush’s June 2006 executive order on eminent domain, which forbade federal agencies from initiating condemnations intended to “merely . . . advance[e] the economic interest of private parties.” Unfortunately, Bush’s order did not actually prevent any economic-development takings because government officials can always argue that their goal is to benefit the general public. A new and stronger executive order would have limited impact. But it would send a valuable signal of presidential resolve to protect property rights.
Obama could also act to protect property rights in the field of “regulatory takings,” where government actions often impose onerous burdens on property owners without compensation. For reasons co-blogger Jonathan Adler outlines in this excellent article, compensating property owners for regulatory restrictions on their rights can both strengthen property rights and improve the quality of environmental regulation.
If Obama appoints pro-property rights liberals to the federal judiciary or embraces pro-property rights policies, that will be a sign that he really meant what wrote about property rights and is not a typical big government left-winger. It would also allow him to compile a much better record on property rights issues than the Bush Administration did. If the paean to property rights in The Audacity of Hope turns out to be more than just hype, that would give us some change we can really believe in. I’m skeptical that Obama will actually do any of this. As he himself puts it, “hope is not blind optimism.” But I’m not giving up hope completely. After all, in the same breath, Obama also said that “Hope is that thing inside of us that insists, despite all the evidence to the contrary, that there is something greater inside of us.” Maybe Obama will yet find inside himself the audacity to strengthen protection for property rights.