ARTICLES
PROPERTY RIGHTS AND THE
CONSTITUTION: WILL THE UGLY
DUCKLING BECOME A SWAN?*
HERMAN SCHWARTZ**
TABLE OF CONTENTS
Introduction ................................................
I. The Historical Argument ..............................
A. John Locke and the Constitution ..................
1. Locke's influence ..............................
2. Locke's own views .............................
II. Contemporary Thought and Practice ...................
A. Contemporary thought ............................
B. Contemporary practice ............................
C. The protection property has gotten ................
III. The Future ............................................
Conclusion
..........................................
9
14
14
14
16
19
19
21
26
30
39
INTRODUCTION
The story of the ugly duckling is one of the most pervasive myths
of our civilization-a creature of scorn who turns out to be the
grandest of them all. It is the Cinderella story, wish fulfillment in
one of its most charming forms.
In constitutional law, property rights are now like the ugly duckling before it became a swan. They receive very little constitutional
protection against legislative or administrative interference.' Sub*
©1987 Herman Schwartz
Professor of Law, Washington College of Law, The American University. This Article is a revised version of an address given to the Washington Institute for Values in Public
Policy in April 1986 and is reprinted here with its permission.
1. See. e.g., Agins v. City of Tiburon, 447 U.S. 255, 260-61 (1980) (refusing to find taking when zoning ordinance substantially advanced legitimate state interests and left land**
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
stantive due process protection for property was killed as soon as
the New Deal Court was in place, 2 although the Supreme Court did
not finally bury it until 1963, 3 and the equal protection clause has
been no more protective. 4 The Court has rendered almost impotent even those constitutional clauses most directly concerned with
protecting property, 5 such as the "takings" clause of the fifth
amendment, 6 though two decisions last term may presage some
changes, 7 and the contract clause, 8 despite a few protective contract
clause rulings in the 1970's. 9
The increasing influence of conservative economic and legal
thought raises the possibility that this trend may be reversed.' 0 Indeed, should President Reagan be able to reshape the Supreme
Court, that possibility may come to pass. The argument for heightened protection of private property, therefore, deserves analysis.
owner with fundamental attribute of ownership); Penn Central Transp. Co. v. New York City,
438 U.S. 104, 136 (1978) (holding that state restriction on historic landmark did not effect
taking when owner received "reasonable return" on investment and restriction was reasonably related to public policy of historic preservation); Miller v. Schoene, 276 U.S. 272, 279-80
(1928) (upholding state order for destruction of cedar trees to prevent further harm to important state industry).
2. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (construing the
National Labor Relations Act as within constitutional bounds); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 392, 397 (1937) (holding freedom to contract as qualified right; due process protects only against arbitrary legislative purpose). Each of these constitutional battles
over the New Deal upheld legislative interference with contractual and property rights.
3. Ferguson v. Skrupa, 372 U.S. 726, 730-31 (1963) (abandoning use of due process
clause to nullify social and economic legislation in deference to legislative bodies).
4. See Village of Belle Terre v. Boraas, 416 U.S. 1, 15-19 (1974) (upholding zoning
ordinance that excluded families containing two or more unrelated individuals; Marshall's
dissent treated exclusion as equal protection problem).
5. See generally Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) (upholding state statute as
exercise of police power; Court denied that state severance tax infringed upon existing royalty
and consumer contracts); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.
264 (1981) (dismissing facial challenge to federal surface mining act because plaintiff
presented no concrete controversy as applied to parcel); Agins v. City of Tiburon, 447 U.S.
255 (1980) (remanding case to trial court because Court concluded that restriction did not
constitute taking); Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (upholding historic landmark designation that restricted development of Grand Central Station).
6. The "takings" clause of the fifth amendment provides in part: "[N]or shall private
property be taken for public use, without just compensation." U.S. CoNsT. amend. V.
7. For a discussion of the two latest takings decisions, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. 2378 (1987) and Nollen v.
California Coastal Comm'n, 107 S. Ct. 3141 (1987), see supra note 160.
8. The "contract clause" provides that: "No State shall ... pass any Law impairing the
Obligation of Contracts .... " U.S. CONST. art. I, § 10, cl. I.
9. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244-51 (1978) (contract
clause prevented legislature from retroactively modifying terms on which Allied agreed to
compensate its employees and from imposing new monetary obligations on Allied), United
States Trust Co. v. New Jersey, 431 U.S. 1, 32 (1977) (state statute that repealed statutory
covenant violated contract clause).
10. See generally Meese, Toward a Jurisprudenceof OriginalIntention, 2 BENCHMAIRK 1 (1986)
(advocating judicial restraint); Berger, New Theories of Interpretation: The Activist Fightfrom the
Constitution, 47 OHIo ST. LJ. 1 (1986) (favoring constitutional interpretation that limits judicial authority).
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
What is the basis of the argument? Would it be a good thing? What
is the likelihood of its happening? The topic is, of course, worthy of
a full treatise, and many recent books and articles, primarily out of
the University of Chicago Law School and its votaries, forcefully
present the position." In this Article, I will comment on a few of
the major points of the debate.
Richard Epstein of the University of Chicago Law School has
made the most systematic presentation for heightened protection
for private property in his 1985 book, Takings-PrivateProperty and the
Power of Eminent Domain,12 and in numerous articles. 3 Professor Epstein is a regular contributor to the Wall Street Journal, whose editorials frequently echo his call for vigorous activism on behalf of
what the Journal calls "economic civil rights."' 4 In addition, Epstein is an influential adviser to the Reagan Administration; he is
said to have turned down a federal court of appeals judgeship in
order to continue to speak out for his views. This Article will, therefore, concentrate on Professor Epstein's ideas.
Professor Epstein's argument relies heavily on the "original intent" of the Constitution, an approach urged by many who do not
necessarily share Professor Epstein's position on the property rights
issue, such as Judge Robert Bork.' 5 Analysis of the validity of Professor Epstein's use of an original intent approach to property rights
may thus also illuminate the issues raised by reliance on original
11. See generally Epstein, An Outline of Takings, 41 U. MIAMI L. REV. 1 (1986) [hereinafter
Outline of Takings] (contending that just compensation clause should guide problems of political obligation); Epstein, The Last word on Eminent Domain, 41 U. MIAMI L. REV. 253 (1986)
[hereinafter Eminent Domain] (responding to critics who challenge Epstein's political theory
and constitutional position); Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73
(1985) (presenting Locke's theory of labor, cultivation, and development as foundation for
protected property rights); Note,Justice Rehnquist's Theory of Propery, 93 YALE LJ. 541 (1984)
(examining Rehnquist's theory of property that gives a renewed constitutional significance to
individual property rights). But see Sax, Some Thoughts on the Decline ofPrivatePopery, 58 WASH.
L. REv. 481 (1983) (predicting the continuing decline of property rights).
12. R. EPSTEIN, TAKINGS - PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN
(1985).
13. See Outline of Takings, supra note 11; Eminent Domain, supra note 11; Epstein, Past and
Future: The Temporal Dimension in the Law of Property, 64 WASH. U.L.Q. 667, 670 (1986) (protecting property rights of first possessor encourages owner to use land most efficiently and protect property most diligently); Epstein, The Pitfalls of Interpretation, 7 HARV. J.L. & PuB. POL'Y
101, 106 (1984) (approving Supreme Court's late nineteenth-century exercise ofjudicial restraint); Epstein, Toward Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703, 750 (1984)
(courts should change course and revive contract clause with full intended protections).
14. Compare Wall Street Journal, Nov. 14, 1985, at 32, col. 4 (expressing disagreement
with current "judicial activism" on behalf of equality and other non-economic civil rights) with
Wall Street Journal, Aug. 9, 1984, at 28, col. 3 (criticizing Burger Court for disregarding
"protection of economic liberties as part of its own constitutional mission").
15. See Bork, Neutral Principlesand Some First Amendment Problems, 47 IND. LJ. 1, 17 (1971)
(identifying "specified" individual rights by referring to text and history of Constitution for
framers' intent, and "secondary" individual rights by turning to governmental process established by Constitution).
12
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[Vol. 37:9
intent in other contexts, such as the separation of church and state,
whether the fourteenth amendment incorporates the fundamental
provisions of the Bill of Rights, and whether the Constitution protects a right to privacy, all of which have become the subjects of
6
public debate in the last few years.'
The Epstein argument is brilliantly simple and can be summarized
in a few propositions. As with all fundamental simplicities, its
ramifications are enormous.
1. The Constitution embodies the views of the great seventeenth17
century English philosopherJohn Locke.
2. For Locke, the right to property is one of humanity's natural
rights. It exists prior to and independent of government by virtue of
the mixture of an individual's labor with nature. The invention of
money introduced inequalities in property with community
consent. 18
3. Government is created by a social contract in order to preserve
that property against aggression from others. 19 Its role is only to
maintain peace and order, 20 to prevent force and misrepresentation,
and to stop private nuisances. 2 1 Government operates by forcing
economic exchanges. It may take property from private citizens but
16. See generally Meese, supra note 10 (advocating judicial restraint in accordance with
framers' original intent); Tepker, The Defects of Better Motives: Reflections on Mr. Meese'sJurisprudence of OriginalIntention, 39 OKLA. L. REV. 23 (1986) (Meese's jurisprudence of original intent
only one of many "visions of judicial self-restraint"); Berger, supra note 9 (favoring constitutional interpretation that includes legal limits to arbitrary power and greater responsibility of
government); Berger, OriginalIntention in Historical Perspective: Symposium on Civil Rights and
Civil Liberties, 54 GEO. WASH. L. REV. 296 (1986) (responding to critics of "intentionalism");
Bennett, JudicialActivism and the Concept of OriginalIntent, 69 JUDICATURE 218 (1985) (judicial
decisionmakers should accommodate change within framework of stability provided by precedent and patterns of societal interaction); Brennan, Construingthe Constitution, 19 U.C. DAVIS L.
REV. 2 (1985) (response to theory of original intent); Meese, Construing the Constitution, 19 U.C.
DAVIS L. REV. 22 (1985) (theory of constitutional interpretation); Stevens, Construingthe Constitution, 19 U.C. DAVIS L. REV. 15 (response to theory of original intent); New York Times, Feb.
25, 1987, § II, at 2, col. 4 (New York ChiefJudge Sol Wachtler's challenge to Meese's opinion
that constitutional interpretation should be limited to framers' "original intent"); New York
Times, Nov. 19, 1986, § I, at 16, col. 1 (describing pattern of furor following Meese's critiques
of Supreme Court); New York Times, Nov. 15, 1986, § I, at 30, col. I (reviewing sub-cabinet
committee report lamenting "evisceration" of federalism and suggesting that report gives
new historic dimension to Meese's dubious jurisprudence).
17. R. EPSTEIN, supra note 12, at 19 (noting that procedural and substantive provisions
within Constitution reflect basic Lockean design).
18. See K. SQUADRITO, JOHN LOCKE 108-12 (1979) (discussing Locke's theory of individual appropriation of property). Locke placed a limitation on the property that each individual
may appropriate for himself: "[a]s much as any one can make use of to any advantage of life
before it spoils." J. LOCKE, SECOND TREATISE OF GOVERNMENT, 31 (P. Laslett rev. ed. 1963).
This much, says Locke, a person may "by his labour fix a Property in. Whatever is beyond this
is more than his share, and belongs to others." Id.
19. R. EPSTEIN, supra note 12, at 108 (citingJ. LOCKE, Two TREATISES OF GOVERNMENT
1 136 (1698)).
20. R. EPSTEIN, supra note 12, at 14.
21. Id. at 111-12 (development of antinuisance concept of police power).
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
only for public use, and must then evenly divide the resulting benefits ("surplus").2 2 When it takes property it must pay the former
23
owner either in money or in compensating benefits.
4. Government 'takes" property whenever it diminishes a right
attendant to disposition, possession, or use of property. Taxes and
24
regulation effect a diminution for these purposes.
5. Government may take property only for "public uses," 25 which
do not include redistribution of wealth or charity or any other purpose that does not benefit the parties equally. 26 Thus, estate and
gift taxes, urban renewal, rent control, land reform, and zoning are
largely unconstitutional, as are most welfare laws. 2 7 Because the
property affected by the takings clause includes contract rights, any
interference with such rights that does not benefit both parties
equally is unconstitutional. 28 Courts, therefore, should strike down
much of modern labor relations law, including the National Labor
Relations Act, which mandates collective bargaining, and minimum
wage and maximum hours legislation. As Professor Epstein proudly
acknowledges, 'It will be said that my position invalidates much of
29
the twentieth century legislation, and so it does."
6. Courts should begin to engage in energetic judicial activism
that will cut back as much of the legislation of the last two centuries
as possible. To accomplish this, the courts should apply an intermediate level ofjudicial scrutiny, of the kind currently applied in gender cases under the equal protection clause, rather than the rational
basis test currently applied to legislation affecting only property
30
rights.
7. Under this scheme, the poor and disadvantaged will ultimately
be better off because the termination of excessive governmental
control will free up energy and initiative, increase the amount of
22. Id. at 162-64 (Lockean theory requires pro rata distribution of surplus and sovereign
may take only those funds necessary to operate state).
23. Id. at 195.
24. Id. at 99-104 (traditional government activities, including taxation and regulation,
are amenable to same "takings" analysis).
25. Id. at 162 (describing public use requirement as strict limitation upon governmental
power to take private property).
26. Id. at 163, 170-81 (arguing that redistribution is prorated so as not to skew incentives
of private parties; those who make largest investment in state receive largest return).
27. Id. at 170-81 (criticizing as unconstitutional mill acts, rent control, urban renewal,
and land reform).
28. Id. at 88-92 (eminent domain clause also protects contract rights created by voluntar exchange).
29. Id. at 281.
30. Id. at 144-45.
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goods and benefits available for all, and increase private charity. 3 1
I think that each of these premises is either wrong or raises far
more problems than it could conceivably solve.
I.
THE HISTORICAL ARGUMENT
A. John Locke and the Constitution
1.
Locke's influence
32
The position of Professor Epstein and others who share his view
is not the simplistic "original intent" argument we occasionally get
from Attorney General Edwin Meese and some others. 33 Professor
Epstein acknowledges that examining the intent of the framers of
the Constitution "is likely to generate more confusion than it eliminates." 3 4 He believes, however, that at least some of these difficulties can be avoided by examining the writings of "standard writers
of the times." 3 5 In the final analysis, if the original intent is rela36
tively clear, it must be followed.
The cornerstone of Professor Epstein's thinking is his argument
that the framers "shared Locke's and Blackstone's affection for private property," as shown by their inserting an eminent domain provision in the Bill of Rights. 37 Professor Epstein offers little evidence
for this proposition, and there are strong indications to the
38
contrary.
Indeed, until about ten years ago, many doubted Locke's importance to Jefferson, for example, and his preeminence in eighteenthcentury constitutional thought and moral philosophy. 3 9 Garry Wills
and many others emphasized the importance of Scottish philoso31. Id. at 344-46. Compare Craig v. Boren, 429 U.S. 190 (1976) (intermediate test) with
City of New Orleans v. Dukes, 427 U.S. 297 (1976) (rational basis test).
32.
See, e.g., B. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTIr~roN 34-36 (1980)
(describing Locke's theory of governmental authority and asserting that Revolutionary generation accepted much of his political philosophy).
33. See, e.g., Meese, The Supreme Court of the United States: Bulwark of a Limited Constitution,
27 S. TEX. L. REv. 455, 456 (1986) ("drafters' original intent" as proper standard for interpretation of Constitution); Lecture by Attorney General of the United States Edwin Meese III, at
the University of Dallas (Feb. 27, 1986); see also supra note 16 (citing additional sources of
literature on original intent).
34. R. EPSTEIN, supra note 12, at 26.
35. Id. at 27.
36. Siegan adds the confusing and ambiguous caveat that this not "damag[e] the fabric
of society." See B. SIEGAN, supra note 32, at 7-15.
37. R. EPSTEIN, supra note 12, at 29; see B. SIEGAN, supra note 31, at 34-37.
38. See G. WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE 175
(discounting assumption that Lockean orthodoxy explains Jefferson's political thought).
39. See Carp, Up From Civic Virtue, PA. Q., July 1984, at 367.
19871
PROPERTY RIGHTS AND THE CONSTITUTION
phers such as David Hume. 40
Intellectual fashions have changed again, however. Some historians, reacting strongly against reading Locke out of Anglo-American
intellectual history, have systematically attempted to reestablish the
importance of liberal individualism in understanding the political
41
upheavals of this period.
Such a shift in opinion is not unique. Sometimes the very same
historian changes his views. More than twenty-five years ago, Leonard Levy argued that the framers did not intend the first amend-2
4
ment to repudiate the repressive common law of seditious libel.
His conclusions were widely accepted. Recent research, however,
has led Levy to conclude that nineteenth-century society accepted
vigorous expression to a much greater degree than he originally
thought. 4 3 He has accordingly changed the title of his book from
44
Legacy of Suppression to The Emergence of a Free Press.
How should mere lawyers and judges choose from among the
competing and changing fashions of the experts? Looking to the
"standard writers" reveals nothing, because it is unclear how much
influence they really had and how "standard" they really were. At
most, their writings provide a sense of linguistic usages. Even then,
anyone who has tried to work through the modem political philoso46
45
phy and theory of theorists such asJohn Rawls, Ronald Dworkin,
or Robert Nozick, 4 7 knows how difficult it is to arrive at generally
48
accepted meanings from "standard writers."
Moreover, Professor Epstein seems unwilling to credit some of
the "standard writers." Professor Joseph Sax has observed that the
great Dutch political philosopher, Hugo Grotius, and other great
"standard writers," believed in the "just price" theory and that
wage and price controls were therefore perfectly proper. 4 9 This
conflicts with the Epstein view that the Constitution forbids such
40.
See G. WILLS, EXPLAINING AMERICA: THE FEDERALIST 14-23 (1981) (describing Scot-
tish influence); G. WILLS, supra note 38, at 175-76, 183, 193-317 (1978).
41.
See Carp, supra note 39, at 368.
42. See L. LEVY,
LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMER-
46.
(1985);
47.
(1960).
See Levy, The Legacy Reamined, 37 STAN. L. REv. 767, 768 (1985).
L. LEVY, THE EMERGENCE OF A FREE PRESS (1985).
J. RAWLS, A THEORY OFJUSTICE (1971).
See R. DWORKIN, LAW'S EMPIRE 3-6 (1986); R. DWORKIN, A MATTER OF PRINCIPLE
R. DWORKIN, TAKING RIGHTS SERIOUSLY xiv, 279-90 (1977).
See R. NoZICK, ANARCHY, STATE AND UTOPIA (1974).
48.
For an interesting judicial example, see the disagreement among the dissentingJus-
ICAN HISTORY
43.
44.
45.
tices in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 579-80 (1985) (discussing
whether National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia, mandated balancing test).
49. See Sax, Takings and the Police Power, 74 YALE LJ. 36, 54 (1964).
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price regulation. Professor Epstein dismisses Sax's observation and
simply denies that Grotius' concept of price control influenced
those who drafted or ratified the fifth amendment provision on
taking. 50
Why not? Grotius, Pufendorf, and others were clearly "standard
writers" of that era. Although this obviously is not conclusive, both
Madison and Hamilton cited Grotius in The Federalist Papers, 5 '
whereas Locke's name does not even appear in the index to the
Modern Library Edition. 52 Farrand's compilation of the records of
the Federal Convention notes only one set of citations to Locke:
Luther Martin, an opponent of the Constitution who protested against
centralized power, cited Locke to support the proposition that, in
the state of nature, individuals "are equally sovereign and free" and
that the states are similarly equal. 53 Martin's argument thus focused
54
not on natural rights, but on equality in the state of nature.
The point of this discussion is not to argue the question of
whether or not Locke was influential. Obviously he had some influence. But one cannot build a constitutional theory of enormously
far-reaching dimensions on something as insubstantial, unprovable,
and controversial as the influence of some on others. The assertion
of Locke's influence is an especially weak foundation for constitutional theory if the key issue is not the thoughts of the handful of
men who drafted the amendment and the Constitution, but the
views of the many others who ratified it and who reflected a broad
range of educational, social, and economic backgrounds, and widely
55
diverse attitudes.
2.
Locke's own views
The theory of constitutional interpretation based on the likely influence of certain political philosophers on the framers is problematic for two additional reasons. In the first place, a particular
thinker may indeed be very influential, but only with respect to
some of his ideas. All agree, for example, that Blackstone was enormously influential, but that clearly does not apply to his support for
50. R. EPSTEIN, supra note 12, at 27-28.
51. THE FEDERALIST No. 20 U. Madison & A. Hamilton); THE FEDERALIST No. 84 (A.
Hamilton).
52. THE FEDERALIST No. 20, at 605-18 (E. Earle ed. 1941).
53. See I M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 437 (1937
ed.).
54. See id. at 437-43.
55. See Shalhope, Republicanism and Early American Historiography,39 WM. & MARY Q. 334,
337 (1982) (discussing recent school of American history scholars who perceived colonial
American beliefs as diverse and conflicting). For a list of representative examples of this
school of American history, see id. at 337 n.9.
19871
PROPERTY RIGHTS AND THE CONSTITUTION
legislative supremacy, 56 which is quite inconsistent with the development of judicial review in the United States.
In the second place, it is not easy to get at just what a particular
thinker means. This is especially true for Locke's justification of private property in a mythical state of nature. 5 7 Indeed, there are so
many difficulties for Epstein here that he repudiates parts of Locke
without noticing that he may be repudiating precisely those parts
that actually influenced the founders, like the "equality" of which
Luther Martin spoke. 5 8
An elaborate analysis of Locke's thinking on property and government is unnecessary to show that Epstein presents a narrow and
cramped reading of Lockean philosophy. It is enough to note only a
few key points, refutation of any of which is very damaging to Professor Epstein's thesis.
Professor Epstein argues that, for Locke, the right to property is
prior to government and is independent of governmental action.59
Property rights are thus not subject to any government regulation
that significantly diminishes them without full compensation. 60 Second, Epstein posits a private right to property that carries no affirm6
ative obligations to others except not to do them positive harm. '
"[A] system of welfare," he writes, "conflicts with the theory of private rights that lies behind any system of representative government.... [T]he basic rules of private property are inconsistent with
any form of welfare benefits ....,,62
Both of these points are subject to serious dispute. Locke did see
private property as somehow prior to government by virtue of a
mythical first possessor in a state of nature who appropriated from a
God-given common pool by mixing his labor with the "acorns he
pickt up under an Oak, or the Apples fallen from the Trees." 6 3 But
the only basis on which men can accumulate more than they can use
without the goods being spoiled 6 4 is through the "the invention of
money and the tacit agreement of men to put a value on it, [which]
56. See la W. BLACKSTONE, COMMENTARIES *91 ("there is no court that has power to
defeat the intent of the legislature").
57. See C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES
To LOCKE 209 (1962) (describing Locke's mythical state of nature as "a curious mixture of
historical imagination and logical abstraction from civil society").
58.
59.
See supra note 53.
R. EPSTEIN, supra note 12, at 10.
60.
Id. at 15.
61.
Id. at 314-24.
62.
Id. at 318, 322.
63.
J. LOCKE, Two TREATISES OF GOVERNMENT § 28 (1698).
64.
Id. § 31 ("Nothing was made by God for man to spoil or destroy").
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[Vol.
37:9
introduced (by consent) larger possession." 6 5 Moreover, the
"bounds ...and limits between" large estates were also the result of
agreement and laws. 66 "Compact and agreement settled the property which labor and industry began" 67 and it is through consent that
men have "agreed to a disproportionate and unequal possession of
the earth-I mean out of the bounds of society and compact;for in
government the laws regulate it."68
In short, natural law extends the right to private property to property that is required for a person's sufficiency.6 9 There is a natural
right to subsistence by laboring for it, but accumulation of property
beyond that level is a matter of convention, subject to government
70
regulation.
This was in fact the standard view. Although Professors Epstein
and Siegan cite Blackstone as also of great influence, 71 Blackstone
believed with David Hume that all property rights were established
by society, a so-called matter of "artifice," and were subject to legislative regulation. 7 2 Indeed, Locke himself said that "in government
the laws regulate" the inequalities of property. 73
Moreover, this natural right to property for subsistence and convenience is limited in ways totally inconsistent with Epstein's thesis.
For Locke, each person has a right to all he can labor with and use,
"at least where there is enough and as good left in common
for
others." 74 Locke's theory of property rights thus incorporates limitations on the right to withhold resources from people in need. 7 5
Professor Epstein is not happy with this Lockean caveat, 76 but it is
clearly there and cuts sharply against the nonobligatory nature of
the right he attributes to Locke.
65.
66.
67.
Id. § 36.
Id. § 38.
Id. § 45.
68.
Id. § 50.
69. Id. § 36 ("the measure of property nature will set, by the extent of man's labor and
the conveniency of life").
70. But see MACPHERSON, supra note 57, at 203 (arguing that Locke intended to extend
man's natural right to all property).
71. See R. EPSTEIN, supra note 11, at 22-23; B. SIEGAN, supra note 32, at 12 (indicating that
Blackstone was foremost legal authority of constitutional period). Numbers support this view:
Edwin Corwin reports that some 2500 copies of Blackstone's Commentaries had been sold in
America prior to 1776. E. CORWIN, LIBERTY AGAINST GOVERNMENT 53 (1948).
72. Whelan, Property as Artifice; Hume and Blackstone, in PROPERTY (Pennock & Chapman
eds.) NOMOS 101, 101 (1980) (noting conceptual similarities between Hume and Blackstone
in establishing property as institution supported by "elaborate, conventional system of social
rules").
73. See Locke, supra note 63, § 50.
74. See id. § 27.
75. See Note, Richard Epstein on the Foundations of TakingsJurisprudence, 99 HARV. L. REV.
791, 801 (1986). For a list of similar views by others, see id. at 801 n.52.
76. See R. EPSTEIN, supra note 12, at 11.
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
Professor Epstein's hostility to wealth redistribution also forces
him to reject Locke's theory that in the state of nature, the fruits of
the earth are initially held in a common pool. As Professor Epstein
recognizes, these notions can be used to justify wealth
77
redistribution.
It is not important to my purpose to quarrel with Professor Epstein on the proper interpretation of John Locke or any other
thinker. 78 The main point is rather that a mode of analysis that
turns on disputable and disputed interpretations of an influential,
"standard writer" is fundamentally flawed. Constitutional rules that
decide profoundly important questions of how we shall live cannot
rest on so shaky a foundation.
II.
CONTEMPORARY THOUGHT AND PRACTICE
Nevertheless, there is a case to be made for looking to contemporary views and understandings. None of us who believes, with Justice William Brennan and others, that the Constitution must grow
and evolve to meet changing situations, 7 9 believes also that we
should completely ignore the contemporary understandings and
practices when our great Charter and its amendments were adopted.
A.
Contemporary thought
In the first place, eighteenth-century public philosophy did not
accept the notion that untrammelled self-interest, unencumbered by
any obligation to others, was the basis for a good society.8 0 The
dominant philosophy at the time of the Revolution was what has
come to be known as "republicanism," 8' the principles of which are
quite antithetical to those Professor Epstein espouses. This very
widespread republican ideology which, according to some historians, served to mask severe social conflicts involving class, culture,
and economic interest, focused on simplicity, frugality, equality, and
public virtue. "The sacrifice of individual interests to the greater
good of the whole formed the essence of republicanism and com77. See Epstein, The Uncertain Quest for Welfare Rights, 1985 B.Y.U. L. REv. 201, 214-15
(wealth redistribution may be viewed as returning property to people at large if fruits of earth
are owned in common).
78. One could marshal many other arguments against the Epstein thesis, including criticism of his refusal to consider the numerous ambiguities in the very concept of property. See
R. EPSTEIN, supra note 12, at 20-24; see, e.g., Sax, Takings and the Police Power, 74 YALE LJ. 36, 37
(1964); Grey, The Disintegration of Property in PROPERTY (Pennock & Chapman eds.) NOMOS
69, 163 (1980) ("property" has no consistent meaning).
79. See W.J. Brennan, The Constitution of the United States: ContemporaryRatification, Symposium at Georgetown Univ. (Oct. 12, 1985).
80. See G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 53-65 (1969).
81. See id. at 53.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
prehended for Americans the idealistic goal of their Revolution." 8 2
Faction and party division were deplored, and the state was to be
considered "one moral whole," dependent on a balanced and popularly elected government and on the freedom of speech and press. 8 3
As Wood sums it up, this was an anticapitalistic philosophy that was
"a final attempt to come to terms with the emergent individualistic
society that threatened to destroy once and for all the communion
and benevolence that civilized men had always considered to be the
4
ideal of human behavior."'8
This "republicanism" was nothing new in America. Dating back
to John Winthrop,8 5 it was what Americans had always wanted even
though it clearly did not fully mirror reality. Although Americans
apparently changed quite substantially in outlook and ethos and became more individualistic and acquisitive, rhetoric and public philosophy did not change very much.8 6 Thus, the Epsteinian view is at
odds with what is known about what at least some people believed
when putting together or voting on the Constitution-when they
87
gave the matter any thought.
82. See id. at 52, 53.
83. Id. at 58; see Shalhope, supra note 54, at 340 (presenting Gary Nash's conclusion that
Whig ideology, which emphasized balanced government, popularly elected legislature, and
free speech and press was dominant in colonial America); I. STORING, THE COMPLETE ANTIFEDERALIST: WHAT THE ANTI-FEDERALISTS WERE FOR
64-70, 72 (1981) (discussing debate be-
tween Federalists and Anti-Federalists over whether Constitution which based government on
republican principles needed bill of rights to protect individual liberties).
84. G. WOOD, supra note 80, at 418-19.
85. Id. at 59.
86. Id. at 415; Shalhope, supra note 55, at 350; see also THE FEDERALIST No. 10 (J.
Madison) (reflecting concern about political factions).
87. The usually fruitless search through the records of the Convention in the misconceived quest for the Holy Grail of the framers' original intent regarding the primary purpose
of government reveals an almost textbook illustration of why Professor Epstein's search for the
basic idea behind the Constitution is futile. For example, in debating the appropriate number
of people to be represented by each member of the House of Representatives, Madison's
notes of the debate reveal that on July 5, 1787, Gouverneur Morris of New York spoke to the
effect that:
Life and liberty were generally said to be of more value, than property. An accurate
view of the matter would nevertheless prove that property was the main object of
Society. The savage State was more favorable to liberty than the Civilized; and sufficiently so to life. It was preferred by all men who had not acquired a taste for property; it was only renounced for the sake of property which could only be secured by
the restraints of regular Government. These ideas might appear to some new, but
they were nevertheless just.
1 M. FARRAND, supra note 52, at 533. Madison summarized the similar opinion of John Rutledge of South Carolina as, "Property was certainly the principal object of society. If numbers
should be made the rule of representation, the Atlantic States will be subjected to the Western." Id. at 534. Rutledge then moved to make suffrage proportional to a state's tax contribution. This lost 9-1. Id. at 534.
A week later, James Wilson of Pennsylvania, considered by many the ablest lawyer in the
colonies and one of the Federalist leaders, responded to the proposed three-fifths compromise for slaves with a defense of numerically determined majority rule, directly contradicting
19871
PROPERTY RIGHTS AND THE CONSTITUTION
B.
Contemporarypractice
Professor Epstein's views are also not reflective of contemporary
practice during the constitutional period. For one thing, there was a
great deal of economic regulation of property in the late eighteenth
century, as there always had been. One of the foremost students of
property law, Professor Richard Powell, first made a list some
twenty-four years ago of the various ways in which property rights
have always been limited. This list was prepared in response to a
demand by California realtors opposing a fair housing bill for virtually absolute property rights similar to those proposed by Professor
Epstein. 88 Professor Powell first approvingly quoted Walter Lippman's statement that private property rights historically have never
been considered unlimited by any civilized society. 8 9 In support of
Lippman's point, Powell listed approximately twenty common limitations on absolute property rights that protect society as a whole
against a property owner's potential use of his property. These
include
easements by necessity, the law of nuisance, the division of the
benefits of water, regulations as to sanitation and sewerage, building codes, the maintenance of at least a minimum of morality, soil
conservation, over-grazing, timber control, zoning, planning,
blight prevention, housing adequacy, and the protection of those
short in bargaining power, such as renters and borrowers. These
are aspects of our legal background in which progressively property rights have been trimmed for the protection of society.
As Powell concludes: "In each of these twenty areas the criterion
has been basically the same. Is the claimed exercise of property
the earlier statements of Morris and Rutledge regarding the purpose of government. According to Madison's notes,
"[H]e [Wilson] could not agree that property was the sole or the primary object of
Governt. & Society. The cultivation & improvement of the human mind was the
most noble object. With respect to this object, as well as to other personal rights,
numbers were surely the natural and precise measure of Representation.
Id. at 605 (emphasis in original).
88. Powell, The RelationshipBetween Property Rights and Civil Rights, 15 HAST. LJ.135, 13536 (1963).
89. See Newsweek, Sept. 16, 1963, at 21, quoted in Powell, supra note 88, at 139. Lippmann stated that:
No civilized society has long tolerated the despotic theory of private property. This
conception of property is alien to the central truths of Christendom, which have always held that property is not absolute but is a system of rights and duties that are
determined by society ....
Private property is, in fact, the creation of the laws of the land .... It is a primitive,
naive, and false view of private property to urge that it is not subject to the laws
which express the national purpose and the national conscience.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
rights one which is consistent with the public welfare?" 90 There is
nothing novel about this-indeed, mercantilism was still very strong
in the late eighteenth century. 9 '
The specifics of Professor Epstein's thesis about what the Constitution was intended to achieve are also undermined by two other
contemporary matters: social obligation and eminent domain law.
As a study of Rhode Island and Jefferson's Notes on Virginia both
make clear, eighteenth-century communities recognized an obligation to spend public funds on welfare and to assess their members
specifically for that purpose. 92 Rhode Island, for example, from its
earliest days assessed citizens to provide for specific poor individu93
als, as well as for the general support of the poor, sick, and insane.
This public charity was later extended to building almshouses and
workhouses. 94 Private charity, so strongly urged by Professor Epstein, was not the sole source of relief for the poor and the disabled.
Although many of the facilities created for the poor were bad institutions, 95 the fact remains that American communities have always
recognized a public, publicly financed, responsibility toward the
poor, and have taxed themselves for it.96 As the Rhode Island Poor
Law of 1798, which codified earlier statutes, declared,
every town in this State shall be holden to relieve and support all
poor and indigent persons, lawfully settled therein, whenever they
shall stand in need thereof; and may vote and raise monies therefore, and for their employment, in the same way that monies for
97
other town charges are raised.
That does not sound very voluntary or private.
And in his Notes on Virginia, ThomasJefferson wrote that "the poor
unable to support themselves, are maintained by an assessment on
the able persons of their parish ....
Nearly the same method of
providing for the poor prevails through all our States." 98 If, as Professor Epstein believes, "a system of welfare ... conflicts with the
theory of private rights that lies behind any system of the representa90. Id. at 148-49.
91. See Nelson, The Eighteenth Century Background ofJohn 11arshall'sJinisprudence,76 MICH.
L. REV. 893, 903 (1978) (referring to colonial government as "government in the Age of
Mercantilism").
92. See M. CREECH, THREE CENTURIES OF POOR LAw ADMINISTRATION 98 (1969) (discussing Rhode Island's poor laws); THE LIFE & SELECTED WRITINGS OF THOMAS JEFFERSON 250 (A.
Koch & W. Peden eds. 1944) [hereinafter T. JEFFERSON] (documenting Jefferson's views on
state welfare provisions).
93. See M. CREECH, supra note 92, at 98.
94. Id. at 208-09.
95. Id. at 214 (describing generally poor quality of institutions).
96. See id. at 98; JEFFERSON, supra note 92, at 250.
97. CREECH, supra note 92, at 112.
98. T. JEFFERSON, supra note 92, at 250.
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
tive government," 9 9 then at least some of those involved in creating
our particular "system of representative government" did not believe it.
Equally important, Professor Epstein's notions of eminent domain were virtually unknown in those early days. Professor Epstein
tries to cope with what he calls "the brute fact of federalism"-the
fact that the Bill of Rights did not originally apply to the states, and
that the eminent domain clause was only in the fifth amendmentby asserting that an eminent domain provision is "consistent with
the basic Lockean design, as is reflected by the inclusion of an eminent domain provision in every state constitution." 10 0
But how does such an inclusion reflect "the basic Lockean design" of the original Constitution or of the consititutions of the
original states, when only Massachusetts and Vermont had compensation provisions in their early constitutions?10 ' Even in those
states, the provisions appear to have been aimed only at administrative, not legislative action.' 0 2 As late as 1820, a majority of the original states still did not have compensation clauses in their
constitutions. 10 3 The movement for such compensation came well
after the constitutional period, for both eighteenth-century practice
and constitutional theory militated against such compensation. "At
the turn of the century, there still existed a perhaps dominant body
of opinion maintaining that individuals held their property at the
sufferance of the state."' 0 4 The man who began the movement for
compensation was Professor Epstein's doctrinally direct forbear, the
ultraconservative Chancellor James Kent of New York.' 0 5
The early history of eminent domain law also shows a great deal
of uncertainty, mixed goals, and ambiguity.' 0 6 It often involved a
99.
100.
See R. EPSTEIN, supra note 12, at 318 (emphasis added).
Id. at 18. For a discussion of Locke's design, seeJ. TULLY, JOHN LOCKE, 1632-1704:
Two TREATISES OF GOVERNMENT (1980) (contrasting Locke's views of property with those of
his adversaries).
101. See M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAw 1780-1860, at 64 (1977).
102. See Grant, The "Higher Law" Background of the Law of Eminent Domain, 6 Wis. L. REv.
67, 70 n. 14 (1931) (discussing inclusion of eminent domain provisions in state constitutions).
103. See id. at 70; M. HORWITZ, supra note 101, at 64.
104. M. HoRwrrz, supra note 101, at 64.
105. Kent's views were first expressed in Gardner v. Village of Newburgh, 2Johns Ch.162
(N.Y. 1816) (stating that eminent domain, although a power of sovereignty, is limited to public purposes to be decided by courts). For a general background of Kent, see generally J.
HORTON, JAMES KENT: A STUDY IN CONSERVATISM 1763-1847 (1969).
106. ChiefJustice Lemuel Shaw, in Boston Power Co. v. Worcester R.R. (23 Pick.) 360
(1839), wrote:
It is difficult, perhaps impossible, to lay down any general rule, that would precisely define the power of the government, in the acknowledged right of eminent
domain. It must be large and liberal, so as to meet the public exigencies, and it must
be so limited and constrained, as to secure effectually the rights of the citizen, and it
24
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
substantial, involuntary subsidy by the property owner,1 0 7 and, in
later years, conservatives attacked eminent domain as a vehicle for
redistribution and egalitarianism by means of subsidizing public
improvements. 10o
Professor Horwitz best summed up the early developments of eminent domain as follows:
There is ...
a clear trend throughout the first half of the nine-
teenth century in the direction of enacting state constitutional
provisions requiring just compensation ... [and] also an equally
clear countertrend during the same period in the direction of limiting the scope to application of the compensation principle. This
tendency toward limitation often drew upon a suprising widespread and powerful earlier view that all property was originally
held at the sufferance of the sovereign ....
The basic source of early nineteenth-century resistance to the
compensation principle were those entrepreneurial groups who
regarded it as a threat to low cost economic development. Until
around 1850, when there are unmistakable signs of a shift in opinion, these emergent groups in American society generally cast
their influence on the side of limiting the compensation principle
or even of justifying uncompensated takings. At the same time,
there were those who sounded the alarm against all redistributions of wealth through use of the eminent domain power. 10 9
This brief summary makes clear that there is no basis in "original
intent" for Professor Epstein's views. Professor Epstein's views
do echo some early thinking, but it is not so much the thinking of
the framers, as that of later conservatives like Chancellor Kent who,
in trying to protect vested rights, urged many of the views now put
forth by Professor Epstein.' 10 For example, it was these nineteenthcentury conservatives who argued that takings law applies as much
to regulation
and taxation as to more conventional
appropriation. ' ,
The search for an original intent on which to base constitutional
must depend, in some instances, upon the nature of the exigencies as they arise, and
the circumstances of individual cases.
Id. See Scheiber, The Road to hnn: Eminent Domain and the Concept of Pubhc Propoie n the State
Courts, in V PERSPECTIVES IN AMERICAN HISTORY 329, 360-99 (1971) (describing treatment of
eminent domain in early 1800's).
107. See Scheiber, supra note 106, at 361 (revealing absence ofjust compensation clause in
many early state constitutions).
108. See M. HORWITZ, supra note 101, at 66 (relating feeling of alarm expressed by legal
writers over rampant redistribution of wealth).
109. Id. at 66.
110. See, e.g., supra note 105.
111. E. CORWIN, supra note 71, at 78-81.
19871
PROPERTY RIGHTS AND THE CONSTITUTION
principles is, as Paul Brest has put it, a "misconceived quest."1 1 2
Not only is the historical record usually inadequate and confusing,
but circumstances have changed so much since the late eighteenth
and mid-nineteenth centuries.1 1 3 How can we know how the various
framers of the Constitution and its amendments would respond to
today's problems? Justice Sandra Day O'Connor observed in the
moment of silence case, "it is unlikely that the [framers or the ratifying legislators] anticipated the problems of interaction of church
and state in the public schools."' 14 This holds true for almost every
major problem we face today.
We live at the threshold of the twenty-first century and have to
solve our problems with our own mind sets and values. Long-standing traditions, customs, and ways of thinking, revealed in a general
adherence to stare decisis as well as in a continuing fidelity to core
ideas and values in our Constitution, reflect a continuum in the
American way of doing things that goes back to 1787 and earlier.
Mr. Meese was right when he said "those who framed the Constitution chose their words carefully.""15 But the words and ideas they
chose are rarely precise or confining, for the Constitutional text was
intended to accommodate what Thaddeus Stevens in 1866 called
the "advancing progress of higher morality," future usage, and interpretation." 6 That is how higher law was interpreted in the preRevolutionary period and the way it has been applied throughout
our history.
Indeed, there is no escape from seeing the world with today's
mind set. It is an axiom of historical research that each generation
reads history with one eye on contemporary problems and attitudes. "1 7 Historical readings will thus inevitably vary with the times.
It is no accident that in the post-New Deal 1950's, consensus historians such as Louis Hartz dominated, but in the more turbulent
1960's, the conflict school arose." 8 The Progressive Era's Beardian
112. See Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REv. 204
(1980).
113. See id. at 230 (noting change in moral consensus of nation as reflected by civil rights
movement).
114. Wallace v.Jaffree, 105 S.Ct. 2479, 2503 (1985) (O'Connor, J., concurring).
115. Address by Attorney General of the United States Edwin Meese III, D.C. Chapter of
Federalist Society, 5 (Nov. 15, 1985).
116. See Bickel, The OriginalUnderstandingand the Segregation Decision, 69 HARV. L. REv. 1, 45
(1955) (describing Stevens' involvement in preparation of 14th amendment).
117. See R.G. COLLINGWOOD, THE IDEA OF HISTORY 1-10, 205-31 (1946).
118.
Compare L. HARTZ, THE LIBERAL TRADITION IN AMERICA (1955) (describing develop-
ment of liberal society from a liberal perspective) with TOWARDS A NEw PAST: DISSENTING
ESSAYS INAMERICAN HISTORY (Bernstein ed. 1968) (containing opposing and varying perspectives of history).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
interpretation, on which Professor Epstein relies," 9 has itself been
subjected to revision and criticism. 120 Not surprisingly, conservatives like Professor Epstein are coming to the fore in the Reagan era.
Does the constitutional text itself support Epstein's views?
Hardly. The takings clause, 12 1 on which Professor Epstein places so
much weight, consists of only a few words at the end of the fifth
amendment. The amendment itself deals with many other quite unrelated matters and takings do not even get the dignity of a separate
amendment. This, of course, makes sense when one realizes that
there was so little contemporary interest in this matter that it ap1 22
peared in almost no state constitutions.
The contract clause, the other purportedly strong indication of a
predominant concern for property rights, 23 also appears only at the
end of a clause dealing with many other things. 12 4 According to
Corwin, the contract clause was designed primarily to strike at the
state legislatures' attempts to impair ownership rights of specific individuals by "special legislation" of various kinds, many of which
adversely affected creditors.' 25 Even then, the clause may not have
been deemed too vital. Section 10 of Article I also attempted to
deal with this problem by prohibiting bills of attainder and ex post
facto laws, 126 and the framers seem to have relied primarily on the
12 7
latter prohibition.
C.
The protection property has gotten
The protection of property was indeed a concern of the framers of
the Constitution, if not necessarily the primary one. Federalist No.
10 is enough evidence of that,' 28 and much of our constitutional
119.
See R. EPSTEIN, supra note 12, at 24 (stating belief that system of private property
properly distributes wealth to society); C.A. BEARD, ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (1913).
120. See H. STORING, supra note 83, at 4 (discussing lack of support for Beard's analysis);
A. KELLY & W. HARBISON, THE AMERICAN CONSTITrrION: ITS ORIGINS AND DEVELOPMENT 115-
16 (6th ed. 1983) (stating that better view of Constitution's function is political basis including
idea that political ideas were class-based as opposed to Beard's economic view).
121. See supra note 6 (providing text of takings clause).
122. See M. HORwITZ, supra note 101, at 64.
123. R. Epstein, Toward a Revitalization of the Contract Clause, 51 U. Ci. L. REV. 703, 705
(1984) (proposing that contract clause extends substantial protection for property rights).
124. See supra note 8 (providing text of contract clause).
125. E. CORWIN, supra note 71, at 68-71 (noting founders' acknowledgement and concern
of states' abuses of private property); see E. CORWIN, DOCTRINE OF JUDICIAL REVIEW 69-71
(1914) (listing examples of special legislation that impaired ownership rights).
126. See E. CORWIN, supra note 71, at 60 n.4 (noting theory that ex post facto law meant to
cover both penal and civil state legislation).
127. Id. at 60 n.4, 71, 84; II FARRAND, supra note 53, at 439-41 (statement of Madison)
(indicating that goal of contract clause achieved by ex post facto phrase).
128. See THE FEDERALIST No. 10 (J. Madison).
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
27
history involves the degree of protection to be afforded property
2 9
rights.1
What does that constitutional history reveal about the protection
property has received? History reveals just what one would expect-a waxing and waning in accordance with the perceived needs
of society, marked by inconsistency, ambiguity, and confusion of the
kind generated by any institution composed of fallible humans.
According to Corwin, until the 1830's, strong efforts were made
by John Marshall, Chancellor Kent, and others to protect "vested
rights."' 130 The Supreme Court's refusal in Calder v. Bull 13 ' to apply
the ex postfacto clause to civil matters put more weight on the contract clause 132 than that provision could take.' 33 Despite Marshall's
efforts in Dartmouth College v.
oodward,13 4 which brought public
grants under the contract clause, the Court later restricted the application of the clause in Ogden v. Saunders 13 5 (over Marshall's dissent),
and allowed state legislatures to prevent prospective operation of
the contracts clause. By the mid-1800's, the contract clause had lost
much of its force and wound up having relatively little impact. 136
The heyday of property rights protection was the 1880-1937 period, when substantive due process flourished. 137 Developing no129. See generaly U.S. CONST. amend. V ("No person shall be... deprived of life, liberty,
or property without due process of law"); see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW
501 (1978) (noting historical origin of safeguards for preservation of private property).
130. E. CORWIN, supra note 71, at 75-79.
131. 3 U.S. (3 Dall.) 386 (1798) (construing ban on ex post facto laws as applicable to
penal legislation only).
132. See E. CORWIN. supra note 71, at 137 (documenting cases where states invoked contract clause).
133. See A. KELLY & W. HARBISON, supra note 120, at 275-83 (discussing deterioration of
authority of contract clause). In 1810, the Court invalidated a state law that annulled titles of
purchasers in good faith because it conflicted with the contract clause. See Fletcher v. Peck, (6
Cranch) 87 (1810). In 1827, however, the Court concluded that state bankruptcy laws did not
violate the contract clause if they were applied to contracts made after the law was enacted.
See Ogden v. Saunders, (12 Wheat.) 213 (1827).
134. 17 U.S. (4 Wheat.) 518 (1819) (holding that charter of incorporation was contract
protected by Constitution against legislative infringement).
135. 25 U.S. (12 Wheat.) 213 (1827) (upholding state laws that allowed debtor filing bankruptcy to be discharged of obligations); see E. CORWIN, supra note 71, at 197-98.
136, See E. CORWIN, supra note 71, at 84 (quotingJustice William Johnson's 1829 criticism
of need for contract clause); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827) (upholding
state bankruptcy laws as not violative of contract clause). The Ogden case revealed a severely
divided court, where, in six separate opinions, it became apparent that past contract clause
decisions had been based on the understanding that states would have some power over contracts. 25 U.S. (12 Wheat.) 213 (1827). The breakdown of the understanding led to the division of the Court and weakened the force of the past decisions. See A. KELLY & W. HARBISON,
nupra note 120, at 282; see also L. TRIBE, supra note 129, at 467 (describing inevitable unravelling of contract clause).
137. See E. CORWIN, supra note 71, at 134.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
tions first applied in the Dred Scott case,' 3 8 and adopting Justice
Bradley's early dissent in the Slaughter House Cases,' 3 9 the
Supreme Court elevated liberty of contract to a very high level and
struck down 174 state statutes. 140 These laws involved minimum
14 2 laws, health and safety legislation, 143
wage 14 1 and maximum hour
bans on anti-union discrimination, 4 4 entry into a business, 4 5 and
price regulation.14 6 The high point, of course, was Lochner v. Aew
York, 1 47 which held that the right to contract one's labor was protected by the fourteenth amendment, and impelled the dissenting
amendment does not
Justice Holmes to protest that "the fourteenth
148
enact Mr. Herbert Spencer's Social Statics."'
The tide of protection for property rights turned sharply in 1937,
when the Supreme Court upheld a minimum wage law for women.' 49 Now, courts give property rights far less protection than
laws against discrimination based on race' 50 or national origin, ' 5 ' or
against impairment of fundamental rights like the first amendment
liberties of speech,152 assembly,153 and religion.154 Economic legis138. 60 U.S. (19 How.) 393 (1857) (holding Missouri Compromise void under due process as unconstitutional deprivation of property).
139. 83 U.S. (16 Wall.) 36, 51 (1873) (Bradley,J., dissenting) (stating that any law which
prevents citizens from lawful employment was in violation of due process clause); see E.
CORWIN, supra note 71, at 125-26 (noting importance of Bradley's dissent).
140.
See B. WRIGHT, THE GROWTH OF AMERICAN CONSTITUTIONAL LAW 96 (1942).
141. See Connally v. General Constr. Co., 269 U.S. 385 (1925) (regulating minimum wage
for construction workers' wages).
142. See Lochner v. New York, 198 U.S. 45 (1905) (striking down state law regulating
maximum hours).
143. See Holden v. Hardy, 169 U.S. 366 (1898) (invalidating state statutes concerned with
conditions of labor).
144. See Coppage v. Kansas, 236 U.S. 1 (1915) (striking down state law prohibiting "yellow dog contracts").
145. See Adams v. Tanner, 244 U.S. 590 (1917) (invalidating state statute holding employment agency fees unlawful).
146. See Tyson and Bro. v. Banton, 273 U.S. 418 (1927) (striking down law governing the
resale price of theater tickets).
147. 198 U.S. 45 (1905) (5 to 4 vote) (striking down state maximum hours law for bakers).
148. 198 U.S. at 75 (Holmes, J., dissenting). Lochner was overruled in Bunting v. Oregon,
243 U.S. 426 (1917). See generally W. LOCKHART, Y. KAMISAR &J. CHOPER, CONSTITUTIONAL
LAW, 439-41 (5th ed. 1980) (discussing post-Lochner developments).
149. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).
150. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (holding racial segregation of public schools violative of equal protection clause); see also Bob Jones Univ. v. United
States, 461 U.S. 574, 592-96 (1983) (denying tax-exempt status to private school with racially
discriminatory admissions policy); Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating state
statute prohibiting interracial marriages).
151. See Hernandez v. Texas, 347 U.S. 475, 482 (1954) (reversing conviction of MexicanAmerican because of systematic exclusion of Mexican-Americans from state court jury).
152. See Cohen v. California, 403 U.S. 15 (1971) (holding that states may not make public
display of explicative criminal offenses that would violate 1st and 14th amendments); Brandenburg v. Ohio, 395 U.S. 444 (1969) (stating that criminal statute that punishes mere advocacy when assembled with others violates 1st and 14th amendments).
153. See, e.g., United Mine Workers of Am. Dist. 12 v. Illinois State Bar Ass'n, 389 U.S.
19871
PROPERTY RIGHTS AND THE CONSTITUTION
lation, the Court has said, need only meet the test of minimum rationality. 155 The legislation may be wrong-headed, misguided,
based on ignorance, or perhaps even mistaken, 56 but where economic legislation is concerned, the Court will "refuse to sit as a
super legislature to weigh the wisdom of legislation ....
Whether
Spencer,
the legislature takes for its textbook Adam Smith, Herbert
1 57
Lord Keynes, or some other is no concern of ours."
The rational basis test applies to legislation regarding the takings
clause as well. For example, in a unanimous decision upholding a
Hawaiian land reform law that sought to break up great landed estates by creating a land condemnation scheme, one of the more conservative members of the Court, Justice O'Connor, emphasized that
the Court had never proscribed a compensated taking rationally related to a legitimate public purpose as violative of the public use
clause.1 5 8 Regulation of land oligopoly was such a legitimate purpose and within the state's police powers. The legislature's approach was therefore a rational means of achieving that end. 59
Nothing could be further from Professor Epstein's views, and he
60
criticizes the decision severely.1
217, 225 (1967) (upholding Union's right to hire attorneys to assist members as protected by
freedom of assembly); Dejonge v. Oregon, 299 U.S. 353, 365 (1937) (overruling conviction
for conducting Communist Party meeting as violation of freedom of assembly).
154. See, e.g., Hobbie v. Unemployment Appeals Comm'n of Fla., 107 S. Ct. 1046, 1049
(1987) (holding unconstitutional state's refusal to award unemployment compensation benefits to worker discharged for refusing to work on Sabbath); Wisconsin v. Yoder, 406 U.S. 205,
234 (1972) (overruling application of compulsory school attendance law to Amish); Engel v.
Vitale, 370 U.S. 421, 436 (1962) (finding requirement of recitation of official state prayer in
public school violation of establishment clause).
155. See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963); Williamson v. Lee Optical Co., 348
U.S. 483, 487-88 (1955).
156. See Minnesota v. Cloverleaf Creamery Co., 449 U.S. 456,470 (1981) (upholding statute even though legislature was mistaken as to its effect); United States R.R. Retirement Bd. v.
Fritz, 449 U.S. 166, 179 (1980) (refusing to invalidate statute where lower court held that
Congress was misled).
157. Ferguson v. Skrupa, 372 U.S. 726, 731-32 (1963) (citing Day-Brite Lighting, Inc. v.
Missouri, 342 U.S. 421 (1952)).
158. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241-43 (1984).
159. Id. at 242; see also id. at 241-42 (upholding compensated taking of commercial premises to eliminate slum conditions (citing Berman v. Parker, 348 U.S. 26, 35 (1954)); Rindge
Co. v. Los Angeles, 262 U.S. 700, 710 (1923) (affirming compensated taking of private property for highway extension); Block v. Hirsh, 256 U.S. 135, 156-57 (1921) (holding that congressionally-mandated rent control program was not taking of landlord's property).
160. R. EPSTEIN, supra note 11, at 181 (claiming Midiffillustrates how "rational basis test
uses false arguments to negate explicit constitutional guarantees"). The two recent decisions
requiring compensation for a temporary taking, First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 107 S. Ct. 2378 (1987) and Nollen v. California Coastal
Comm'n, 107 S. Ct. 3141 (1987), for what the state considered merely "regulation," do not
significantly change things, although the latter decision may well make it somewhat harder for
state and local planning commissions to operate, and provide property owners somewhat
greater protection. But even in Nollen, the Court stressed that "land use regulation does not
effect a taking if it 'substantially advances legitimate state interests' and does not 'den[y] an
THE AMERICAN UNIVERSITY LAW REVIEW
III.
[Vol. 37:9
THE FUTURE
History offers both solicitude and indifference toward the rights
of property. What should be the constitutional rule in the future?
More precisely, should the Supreme Court resume a close scrutiny
of legislation that adversely affects someone's property?
The latter phrasing of the issue immediately raises a problem. In
many of these cases, the legislature is preferring one person or
group's property to another. In Hawaii Housing Authority v. Midkiff,
the Hawaiian land reform case, the Court was clearly favoring one
economic group while disadvantaging another; 16 1 in wage-hour legislation, 16 2 entry barriers,1 6 3 price controls, 164 and similar matters,
the Court is disadvantaging one group of property holders and
favoring another.
Why should the Court step in to reverse a legislative judgment for
one economic group over another? Professor Epstein considers the
National Labor Relations Act unconstitutional, 165 but why should
courts and legislatures favor the owners of property in capital over
the owners of property in labor? After all, Locke himself said that it
was labor that justified property rights in the first place. 16 6 In the
Hawaiian land reform case, why favor the owners of the lands to be
broken up over the existing lessees who were to be allowed to buy
the land? Where rent control is concerned, why favor the landlord
over tenant? All have property rights of one kind or another.
The Epstein view plunges the Court into the center of economic
struggle, into the pit of economic factionalism. As long ago as the
Federalist No. 10, Madison stressed the bitterness of economic
strife, in the famous passage, which is worth quoting in full:
[T]he most common and durable source of factions has been the
various and unequal distribution of property. Those who hold
and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are
owner economically viable use of his land.'" Id. at 3146. But see id. at 3152-53 (Brennan. J.,
dissenting) (adopting "a narrow conception of rationality").
161. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241-43 (1984) (upholding statute transferring land from lessors to lessees to reduce ownership concentration).
162. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 396-97 (1937) (upholding state
statute establishing minimum wages for women); Morehead v. New York ex rel. Tipaldo. 298
U.S. 587, 618 (1936) (overruling state minimum wage law to benefit adult female employees).
163. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 293
(1974) (upholding ICC determination that benefits of new shipper's market entry outweighed
adverse effect).
164. See Nebbia v. New York, 291 U.S. 502, 521 (1934) (upholding regulation of milk
prices charged by dealers to storekeepers); Munn v. Illinois, 94 U.S. 113, 135 (1877) (affirming regulation of grain storage rates charged by warehouse owners).
165. R. EPsTEIN, supra note 12, at 280.
166. See supra note 18 and accompanying text.
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with
many lesser interests, grow up of necessity in civilized nations,
and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering
interests forms the principal task of modem legislation, and involves the spirit ofparty andfaction in the necessary and ordinary operations
167
of the government.
Contrast Madison's statement, which stresses the inextricable link
between property rights issues and politics, with the pronouncement about basic first amendment freedoms by Justice Robert H.
Jackson in the West Virginia Flag salute cases:
The very purpose of the Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them
16 8
as legal principles to be applied by the courts.
Economic struggle has always been the stuff of politics. The insistence on creating "economic civil rights" to veto outcomes of the
legislative struggle-primarily state and local struggles that are varied, complex, difficult to understand without knowing local conditions, and often intensely partisan-would make the federal courts
the arbiters in these essentially political matters. The results would
be, and have been, severely damaging to the federal courts' authority, on which their role in our system depends. The great "self-in170
flicted wounds"' 169 suffered by the Supreme Court-Dred Scott,
the Legal Tender Cases,' 71 and the decision striking down the income tax' 72 -were all explicitly connected with property rights, as
were the pre-New Deal decisions 173 (though Dred Scott was primarily
a race case), and are precisely the kind (except perhaps again for
Dred Scott) that would be necessary for the Court to vigorously protect property rights.
Chief Justice John Marshall was wiser. Professor Nelson has suggested that part of Marshall's genius and strategy was to try to rec-
THE FEDERALIST No. 10, at 56 (J. Madison) (E. Earle ed. 1941).
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
169. C.E. HUGHES, THE SUPREME COURT OF THE UNITED STATES 50 (1928).
170. Scott v. Sandford, 60 U.S. 393, 404-05 (1857) (denying citizenship to Negro slaves
based on status as property of slaveholders).
171. Hepburn v. Griswold, 75 U.S. 603, 623 (1870) (holding use of United States notes as
legal tender for debts unconstitutional impairment of contract obligations).
172. Pollock v. Farmer's Loan & Trust Co., 158 U.S. 601, 637 (1895) (invalidating income
tax because not apportioned according to representation).
173. See, e.g.,
Lochner v. New York, 198 U.S. 45, 58 (1905) (striking down statute limiting
bakery employees' hours as interference with contract rights); Allgeyer v. Louisiana, 165 U.S.
578, 592-93 (1897) (striking down statute barring insurance policy with out-of-state company
or property in state).
167.
168.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
oncile majority will with a consensus on basic principles by drawing
a line between law, on the one hand, which worked from that consensus and which the Court could therefore deal with, and politics
on the other, which it should not get into because there was no such
consensus. 17 4 Only when there was a broad consensus, however
vague, did the judiciary of Marshall's time uphold individual
75
rights. 1
The line between law and politics is inevitably hazy, wavering, and
subject to charges of being drawn inconsistently. But that is the nature of human society; it does not lend itself to neat categorization,
especially over long time spans.
Professor Epstein's views would have the additional unhappy effect of throwing up to the federal courts and ultimately the Supreme
Court an enormous mass of legislation. Epstein may not like it, but
the regulatory state is here, with volumes and volumes of economic
and social legislation. Not only will close review of this legislation
overload the federal courts, but it will make them activist beyond
anything we now know. And if those courts exercise the kind of veto
Epstein wants them to, the authority of the courts in our system will
be severely tested. We depend on judicial review, but it really fits
somewhat uneasily into a democratic system.176 If the pre-New Deal
period teaches anything, it is that the nation does not want judicial
review to be a frequently exercised constitutional veto of democratically created measures to deal with complex economic and social
problems.177
The Court's position will be especially vulnerable because Professor Epstein wants it to do more than get into these economic fights:
he wants the Court to consistently favor the haves, those who own
or possess property or things, for his primary goal is to prevent
wealth redistribution intended to enhance equality or to make up
for unequal bargaining power. 178 Apart from the merits of such a
preference, this cuts against one of Epstein's own major goals174. Nelson, supra note 91, at 933, 935. But see Nedelsky, Confining DemocraticPolitics: .InitFederalists,Federalists, and the Constitution, 96 HARV. L. REV. 340, 356 (1982) (claiming that Marshall was more assertive of property rights).
175. Nelson, supra note 91, at 936.
176. See generally Attanasio, Evenyman's ConstitutionalLaw: A Theory of the Power of Judicial
Review, 72 GEO. L.J. 1665 (1984); CaineJudicialReview - Democracy Versus Constitutionahty. 56
TEMPLE LAw Q. 297 (1983); Lee, PreservingSeparationof Powers: A Rejection ofJudicialLegislation
Through the FundamentalRights Doctrine, 25 ARM. L. REv. 805 (1983).
177. See supra note 155 (listing cases).
178. See R. EPSTEIN, supra note 12, at 252-53 (rejecting unequal bargaining power rationale for workmen's compensation statutes).
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
avoiding class conflicts.1 79 Few things would aggravate such conflicts more than the perception that the Court is explicitly allied with
the few who have wealth and power, against the many who have
neither. The bitter fights in 1801 over John Adams' effort to pack
the federal courts in order to create a Federalist rear guard against
Jeffersonian democracy,18 0 and the turmoil in the early 1930's181 are
vivid historical examples of the kind of trouble such judicial favoritism can produce.
In this connection it may be worth mentioning some history,
something which Professor Epstein's rather abstract world almost
never does. Far from stirring up class conflict, the unemployment
and other transfer payments created by the very New Deal that Epstein considers unconstitutional 18 2 moderated class conflict and
probably ensured the demise of communism and socialism in the
United States.
A further problem with the views espoused by Professor Epstein,
the Wall StreetJournal, and others is their radicalism. It is a measure
of how far these views are from the mainstream of our history and
traditions that Professor Epstein is at odds not only with the New
Deal but with many basic decisions over 150 years old regarding
property and contract rights. 183 A rejection of so many basic decisions is a revolutionary step and is suspect for that very reason. If so
much of our basic law needs to be overturned, the proposed views
are surely not something that can readily be inferred from, or fit
into, our established constitutional fabric and traditions.
The Epstein position thus violates a basic rule of construction
which, though subject to honorable exceptions, is still a useful working rule: when a constitutional provision is long established and acquiesced in by the community, it has a heavy presumption in its
favor. 18 4 This was the standard view. James Madison originally
179. See id. at 251-52 (criticizing workmen's compensation statutes as fueling conflict between employees and employers).
180. See G.L. HASKINS, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15, at 151-63
(1981).
181. See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 447 (1934) (upholding state
mortgage moratorium over objections that it violated private rights of contract); Nebbia v.
New York, 291 U.S. 502, 531-32 (1934) (removing limitations on states' power to fix prices).
182. R. EPSTEIN, supra note 12, at 281.
183. See, e.g., Berman v. Parker, 348 U.S. 26, 35-36 (1954) (allowing slum clearance); Euclid v. Amber Realty Co., 272 U.S. 365, 397 (1926) (affirming zoning regulation); Block v.
Hirsh, 256 U.S. 135, 158 (1921) (upholding rent control); Mugler v. Kansas, 123 U.S. 623,
671 (1887) (finding temperance legislation constitutional); Ogden v. Saunders, 25 U.S. (12
Wheat.) 132 (1827).
184. See, e.g., Payton v. United States, 445 U.S. 573, 600 (1980) (asserting particular importance of longstanding widespread practice when constitutional standard is vague); Okanogan, Methow, San Poelis, Nespelem, Colville, and Lake Indian Tribes or Bands of the State
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
thought the Bank of the United States was not within the constitutional powers of the Federal Government. 8 5 Twenty years later,
however, Madison signed a bill authorizing the Second Bank and,
when chided for inconsistency, responded: a "construction [had
been] put on the Constitution by the nation which, having made it,
had the Supreme right to declare its meaning."' 8 6
There is another factor to consider when comparing property
rights, on the one hand, with rights such as speech, press, and religion and other forms of association, on the other. If one is to use
the constitutional text for guidance, as Professor Epstein and indeed, I think everyone would agree, it is interesting and perhaps
illuminating to note that the provisions against interfering with
8 7
speech, assembly, and religion are written in absolute terms,
whereas property is protected only against deprivation "without due
process of law," which in the eighteenth century was considered a
merely procedural protection. 8 8 In other words, the Constitution
mandates no abridgment of freedom of speech or creation of an establishment of religion, but deprivations of property are possible if
the right procedures are followed. The course of constitutional history has, of course, modified both provisions.' 8 9 The text is, however, at least one small indication that the framers expected
different treatment for rights relating to the spiritual side of life than
for property rights.
In this connection, it is no accident that the Declaration of Independence speaks of the inalienable rights of "life, liberty and the
pursuit of happiness," not property. 90 Morton White has suggested that this is because, for many natural law theorists, property
rights were not really as basic as the other rights.' 9 ' The right to
of Washington v. United States, 279 U.S. 655, 688-89 (1929) (finding pocket veto supported
by long time construction of provision in which Congress acquiesced); Paddell v. New York,
211 U.S. 446, 448 (1908) (stating that long settled community habits play important part in
determining constitutional questions).
For example, JusticeJoseph Story rejected constitutional construction based on theory and
insisted that it was in fact settled by practice. Powell,Joseph Sto7 "sCommentanes on the Constifulion: A Belated Review, 94 YALE LJ. 1285, 1298 (1985).
185. See THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES
MADISON 495-96 (M. Meyers ed. 1973) [hereinafter MADISON].
186. Letter from James Madison to Charles Jared Ingersoll (June 25, 1831); MADISON,
supra note 185, at 499-500.
187. See U.S. CONST. amend. I.
188.
See U.S. CONST. amend. V.
189. See Konigsberg v. State Bar of Cal., 366 U.S. 36, 49-51 (1961) (rejecting proposition
that freedom of speech and association are absolute); Reynolds v. United States, 98 U.S. 145,
164 (1879) (upholding federal law prohibiting polygamy to Mormons, even though their religion required it).
190. See The Declaration of Independence para. 2 (U.S. 1776).
191.
See M. WHITE, THE PHILOSOPHY OFTHE AMERICAN REVOLUTION 213-21 (1978) (stating
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
property was an "adventitious" right, which presupposes human action for its creation, as opposed to "primary or primitive rights,"
which God himself established. 19 2 I would like to suggest something else. Most societies protect property rights to some extent,
and there is nothing distinctive about that. As Robert Penn Warren
observed, however, the United States is different because the Declaration of Independence explicitly committed the country to freedom. 193 Although freedom may be far weaker when there is not the
kind of protection for private property provided by a capitalist society, other free societies contain far more government control of
property than does the United States, such as Sweden, Great Britain, and Israel. But there is no free society without freedom of
speech and association, freedom of the press, free voting, and freedom of religion. Even so fervent a defender of the capitalist system
as Joseph Schumpeter conceded that socialism is compatible with
19 4
freedom and democracy.
I do not want to minimize the close link between private property
and freedom, no matter how freedom is defined. It really is hard to
be free without money. The existence of the link, however, does not
justify the kind of deference to the rich and the haves of the Epstein
view.
Professor Epstein's views also pose an acute methodological
problem. It is a mistake to say that economic rights do not exist
today-they do, and they are judicially protected.19 5 The presumption in favor of legislative action that adversely affects those rights,
however, is very great. 19 6 Professor Epstein would change that, not
by swinging all the way over to strict scrutiny of any public economic
control, which would defeat virtually every effort at such controls-a
that right of property is not mentioned in any version of Declaration of Independence becauseJefferson did not regard it as "unalienable"); see also Cahn, The Firstnessofthe FrstAmendmeat, 65 YALE LJ. 464, 470-75 (1956).
192. M. WHITE, supra note 191, at 215.
193.
See R. PENN WARREN, THE LEGACY OF THE CIVIL WAR, MEDIATIONS ON THE CENTEN-
NIAL 3 (196 1) (recognizing vision of founding fathers expressed in Declaration and Constitution as "dream of freedom incarnated in a more perfect union").
194. SeeJ. SCHutMPETER, CAPITALISM, SOCIALISM & DEMOCRACY 284 (4th ed. 1976) (noting
that in appropriate states of social environment, socialist doctrine can be run on democratic
principles).
195.
See Nollen v. California Coastal Comm'n, 107 S. Ct. 3141 (1987) (taking clause);
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) (contract clause); Mathews v.
Eldridge, 424 U.S. 319, 332-33 (1976) (stating that continued receipt of social security benefits is statutorily created property interest protected by fifth amendment); Sniadach v. Family
Fin. Corp., 395 U.S. 337, 341-43 (1969) (garnishing of wage earner's salary to safeguard creditor's interests held unconstitutional).
196. See West Coast Hotel v. Parrish, 300 U.S. 379, 397-98 (1937) (stating that every presumption favors validity of legislative enactment in upholding Washington minimum wage
law).
THE AMERICAN UNIVERSrrY LAW REVIEW
[Vol. 37:9
result even the Wall StreetJournal probably would not welcome-but
an intermediate level of the kind we currently employ for scrutiny of
97
classifications based on gender or illegitimacy.1
Intermediate scrutiny for regulation of property rights would add
methodological misery to the political thicket because intermediate
scrutiny is the hardest of all standards to apply and make consistent.198 The test is that the classification "must serve important governmental objectives and must be substantially related to achievement
of those objectives."' 9 9 The questions of what is an "important objective," and who should determine if an objective is important are
highly controversial. When is something "substantially related" as
opposed to a lesser link? As Justice Rehnquist noted in his dissenting opinion in Craig v. Boren, 20 0 the addition of an intermediate level
of review can create an opportunity for excessive subjectivity on the
part ofjudges in future cases. 20 1 The gender and illegitimacy cases
illustrate the indeterminacy of intermediate review - the decisions
are not only sharply divided, but it is very difficult to find any real
20 2
consistency among them.
The problems with intermediate review are particularly acute in
economic matters. Many of the economic regulatory, tax, and other
legislative and administrative acts that adversely affect one group's
property rights, grow out of very complex economic and social con197. See R. EPSTEIN, supra note 12, at 137-40 (advocating common intermediate level of
review for first amendment and eminent domain cases).
198. See Craig v. Boren, 429 U.S. 190, 220-21 (1976) (Rehnquist, J., dissenting) (outlining
difficulties of intermediate review).
199. See id. at 197 (1976) (emphasis added) (applying intermediate review to classification
based on gender); Regents of the University of California v. Bakke, 438 U.S. 265, 359 (1978)
(Brennan,J., concurring) (advocating intermediate level of review for some race classifications
(quoting Boren, 429 U.S. at 197).
200. 429 U.S. 190, 220 (1976) (Rehnquist,J., dissenting).
201. Justice Rehnquist stated:
I would think we have had enough difficulty with the two standards of review which
our cases have recognized-the norm of "rational basis," and the "compelling state
interest" required where a "suspect classification" is involved-so as to counsel
weightily against the insertion of still another "standard" between those two. How is
this Court to divine [sic] what objectives are important? How is it to determine
whether a particular law is "substantially" related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases
used are so diaphanous and elastic as to invite subjective judicial preferences or
prejudices relating to particular types of legislation, masquerading as judgments
whether such legislation is directed at "important" objectives or, whether the relationship to those objectives is "substantial" enough .... [T]he introduction of the
adverb "substantially" requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them.
Boren, 429 U.S. at 220-21 (Rehnquist, J., dissenting).
202. Compare e.g.,Trimble v. Gordon, 430 U.S. 762 (1977) with Lalli v. Lalli, 439 U.S. 259
(1978); Caban v. Mohammed, 441 U.S. 380 (1979) with Parham v. Hughes, 441 U.S. 347
(1979); Craig v. Boren, 429 U.S. 190 (1976) with Michael M. v. Superior Court of Sonoma
County, 450 U.S. 464 (1981).
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
texts.2 0 3 The determination of the "substantiality" of the link between means and ends calls for a detailed knowledge of the
background, and an experienced judgment as to what will, or perhaps only may, work. Courts are in no position to do that. Broad
principles of justice, equity, or anything else are seldom available.
The means-end link is simply too fact-specific for an outsider like a
distant judge to assess "substantiality," a task obviated by the rational basis test.
Further, the Supreme Court's track record offers little support for
such an effort. The decision of the Court in Smyth v. Ames, 20 4 dealing
with utility rate-setting as a constitutional matter, is hardly encouraging, and is one reason for the judicially decreed virtually total divorce between rate-setting and constitutionality.2 0 5 Judicial
performance in a related area, the application of the antitrust law's
rule of reason to vertical distribution arrangements in the aftermath
of Continental TV v. GTE Sylvania Electric Co.,206 has been equally capricious and troublesome.
Other examples of the difficulties the Court would face were it to
undertake an intermediate analysis of property rights appear from
Professor Epstein's own analysis of some decisions. 20 7 He severely
criticizes Midki, 20 8 the Hawaiian land reform case, for adopting the
'20 9
wrong solution to a "market failure problem.
The better place to look for land shortages and high prices is in
the extensive network of state land use regulations that is today
beyond constitutional challenge, even though it facilitates the very
oligopolistic practices that land reform statutes are said to
2 10
counteract.
That is surely a matter on which experts can reasonably differ. How,
therefore, can courts sensibly decide such a question?
Similarly, Epstein adjudges the Court's 1934 ruling upholding the
203. See, e.g., Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 231-32 (1984) (finding State of
Hawaii's reason for taking real property from lessors and transferring it to lessees was to
reduce concentration of fee simple ownerships in state).
204. 169 U.S. 466 (1898).
205. Continental TV v. GTE Sylvania Elec. Co., 433 U.S. 36 (1977) (stating that territorial
restrictions on exclusive distributorships are subject to the rule of reason); FPC v. Hope Natural Gas, 320 U.S. 591 (1944) (adopting modest judicial scrutiny of commission's regulation of
gas rates); see Brett, Monsanto: Great Expectations nfufilled, 30 ANTITRUST BULL. 39, 43, 53
(1985) (examining post-Syhania antitrust litigation).
206. 433 U.S. 36 (1977).
207. See R. EPSTEIN, supra note 12, at 180-8 1.
208. See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). The Court held that the
Hawaii Land Reform Act of 1967 did not violate the "public use" requirement of the fifth
amendment. Id. at 241-42.
209. See R. EPSTEIN, supra note 12, at 184.
210. See id. at 181.
38
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:9
Minnesota mortgage moratorium act in Home Building & Loan Association v. Blaisdell,2 1 1 as "not ... necessarily wrong," since farmers
were in trouble "because of the massive deflation that the federal
government had brought on by contracting the money supply [and]
[t]he intervention was needed to offset not market forces, [an imper2 12
missible ground for Professor Epstein] but state intervention."
But that quite controversial monetarist explanation may not be
widely shared. If five members of the Court do not agree, the statute would be struck down. This is hardly a "neutrally principled,"
or even principled decision by any standard.
Ultimately, the basic problem with the Epstein-Lochner view is that
it presupposes a given natural order of property-holding protected
by common law doctrines that cannot be disturbed. 213 It is "vested
rights" with a vengeance. Laurence Tribe has pointed out, however, that there is no "natural" economic order on the basis of
which a court could restrain or justify any legislative or judicial
21 4
decision.
There is one exception, however, to the notion that the Constitution provides no special protection for property rights, and it is a
controversial one. Indeed, Professor Epstein would severely criticize it, for it involves the very kind of transfer payments he considers
illegitimate: the "new property" entitlements to basic necessities
such as health, welfare, food, and the like. Despite the Supreme
Court's continual refusal to protect certain rights to basic necessities
claimed by poor people,2 1 5 it has nevertheless insisted that when the
Government grants health, welfare, or food benefits to anyone, it
may not totally refuse them to any others without a very good
2 16
reason.
In 1973, for example, the Court declared that the Government
could not cut off the provision of food stamps to households, despite the Government's rationale that the regulations involved were
instituted to combat fraud. 2 17 The dissenters in the Court were
211. 290 U.S. 398 (1934). The Court in Blaisdell held that the state could adopt a moratorium on mortgage payment obligations without violating the contract clause. See id. at 435-42.
212. See R. EPSTEIN, supra note 12, at 737-38 (explaining reasons why mortgagors such as
those in Blaisdell might offer to postpone payment of debts).
213. See id. at 213-15 (defining what interests people have as of right).
214. See L. TRIBE, AMERICAN CONSTITUTIONAL LAw 447 (1978) (discussing decline of
Lochner).
215. See, e.g., Dandridge v. Williams, 397 U.S. 471, 485-87 (1970) (holding that absolute
limit on amount state would grant family, regardless of its need, not unconstitutional).
216. See Goldberg v. Kelly, 397 U.S. 254, 261-63 (1970) (holding welfare benefits are statutory entitlement and due process is required for their termination); United States Dep't of
Agric. v. Moreno, 413 U.S. 528, 532-33 (holding food stamp recipients protected by fifth
amendment).
217. See United States Dep't of Agric. v. Murry, 413 U.S. 508, 512-14 (1973) (holding tax
1987]
PROPERTY RIGHTS AND THE CONSTITUTION
39
quick to point out that a conventionally applied rational basis test
would sustain the Government's rationale.2 18 In 1974, the Court
upheld a lower court decision overturning a refusal to provide public assistance to a fifteen-year old boy. 2 19 In another case, the Court
on
invoked a right-to-travel rationale to strike down restrictions 220
necessity."
"basic
a
was
care
medical
that
medical care, stressing
These cases are indeed few and far between. They probably signal no major change in the Court's relative indifference to property
rights, especially where conventional property not involving the
"basic necessities" of life is concerned. At least in the latter area,
however, there is some judicial interest.
CONCLUSION
In the fairy tale, the little duckling became a beautiful swan because it really was a swan and had been one all along. Property
rights, however, are not and were not intended to be the swan of
constitutional law-they really are just ducks, after all, despite all
the quacking.
dependent provision of Food Stamp Act not rational); United States Dep't of Agric. v.
Moreno, 413 U.S. 528, 532-33 (1973) (ruling that denial of food stamps to households containing unrelated persons was not rational to maintaining adequate nutrition and stimulating
economy).
218. See United States Dep't of Agric. v. Moreno, 413 U.S. 528, 545-47 (1973) (Rehnquist,
J., dissenting); United States Dep't of Agric. v. Murry, 413 U.S. 508, 523-27 (1973) (Rehnquist, J., dissenting).
219. See Williams v. Wohlgemuth, 366 F. Supp. 541 (1973), aff'd mem., 416 U.S. 901
(1974).
220. See Memorial Hosp. v. Maricopa County, 415 U.S. 250, 261-62 (1974) (stating durational residency requirement for free medical care is unconstitutional because it penalizes
indigent's right to migrate).