Eugene correctly points out that American courts have never protected property rights as much as many libertarian scholars would want. However, he goes too far in suggesting that "The American judiciary has never taken a very broad view of property rights." To the contrary, 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.

Today's Supreme Court allows the government to condemn property for virtually any reason, and almost never declares a regulation to be a taking requiring compensation unless the regulation involves physical "occupation" of property or permanently wipes out 100% of the property's economic value; wiping out a mere 98% is not enough (see this article for a discussion of the relevant modern precedents). In the 19th and early 20th century, by contrast, the Supreme Court made clear in the 1896 Gettysburg case that a taking transferring property from one private individual to another would be considered suspect under the Public Use Clause of the Fifth Amendment (I discuss Gettysburg in more detail in this article, pp. 242-43). The early 20th century Court also gave property owners broader protection against regulatory takings than exists today, in cases such as Pennsylvania Coal v. Mahon (1922), a decision written by Justice Oliver Wendell Holmes, one of the justices of that era least willing to use judicial review to protect property owners (or anyone else). It is also worth noting that, in 1917, the Supreme Court relied partly on property rights analysis in striking down racially restrictive zoning in Buchanan v. Warley, a case that helped save the United States from becoming vastly more segregated than we already were.

To be sure, judicial protection for property rights in the 1800s and early 1900s was somewhat weakened by the fact that the Supreme Court did not consider the Bill of Rights to have been incorporated against the states. Thus, takings by state and local governments could be challenged only under the Due Process Clause of the Fourteenth Amendment, under which the Court was more deferential to the state than when it applied the Fifth Amendment's Takings Clause. This led to some relatively permissive Due Process Clause precedents that were later misleadingly cited by the majority in Kelo v. City of New London as "a century" of precedent supposedly justifying their decision (despite the fact that these decisions had nothing to do with the Takings Clause, a point I discussed here, pp. 240-42). Halter v. Nebraska, the 1907 case upholding a state law banning the use of the American flag in advertisements cited by Eugene, was also a Fourteenth Amendment case (neither the Takings Clause nor the First Amendment is even mentioned in the Court's opinion).

However, this relative neglect of state government infringements on property rights by federal courts was balanced by the active role of many state courts in protecting property rights under state constitutions. As my colleague Eric Claeys described in a series of articles, nineteenth century state courts often enforced a narrow definition of public use that prevented condemnation similar to that upheld in Kelo v. City of New London, and also regularly required government to compensate property owners for regulatory takings that would likely be ruled noncompensable today. Eugene himself points out that some state courts protected property rights in flags against the type of restriction upheld by the Supreme Court in Halter; that despite the fact that a ban on the use of American flag images in advertising is actually a relatively minor infringement of property rights (though perhaps a greater infringement on free expression).

Most importantly, nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights. The defense of property rights was widely regarded as one of the central objectives of constitutional law and judicial review, a point documented at length in James Ely's book, The Guardian of Every Other Right, probably the leading history of constitutional property rights. To the extent that judicial protection for property rights fell short, it was in part because of the general weakness of judicial review as an institution as compared to today. All of this is in sharp contrast to the "poor relation" status to which property rights are relegated by today's federal courts.

In recent years, some state courts have begun to protect property rights more than before; for example, eleven state supreme courts have ruled that Kelo-style "economic development" takings are forbidden under their state constitutions. But both federal and most state courts protect property rights far less than in the pre-New Deal era.

It is indeed true, as Eugene says, that there was "no Golden Age of constitutional property rights." Courts rarely, if ever, protect any right fully; and pre-New Deal property rights jurisprudence was no exception. Nonetheless, this is one field where protection for constitutional rights drastically declined during the period from the 1930s to roughly the 1970s and has seen only a modest recovery since then. We should not idealize nineteenth and early twentieth century courts, whose jurisprudence had numerous well-documented flaws such as the relative neglect of freedom of speech described by Eugene. In the field of property rights, however, things really did change for the worse during the twentieth century.