Private Property and the Constitution
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Private Property and the Constitution State Powers, Public Rights, and Economic Liberties James L. Huffman
PRIVATE PROPERTY AND THE CONSTITUTION Copyright James L. Huffman, 2013. Softcover reprint of the hardcover 1st edition 2013 978-1-137-37660-2 All rights reserved. First published in 2013 by PALGRAVE MACMILLAN in the United States a division of St. Martin s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the World, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978 1 349 47775 3 ISBN 978 1 137 37673 2 (ebook) DOI 10.1057/9781137376732 Library of Congress Cataloging-in-Publication Data Huffman, James (James L.) Private property and the constitution: state powers, public rights, and economic liberties / James L. Huffman. pages cm Includes index. 1. Right of property United States. I. Title KF562.H84 2013 346.7304 32 dc23 2013024873 A catalogue record of the book is available from the British Library. Design by Integra Software Services First edition: December 2013 10987654321
For Kurt, Erica, Spencer, Claire, & Meg
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Contents List of Figures Preface ix xi 1 Introduction 1 2 Police Power 7 3 Eminent Domain 45 4 Public Rights 83 5 Economic Liberties and the Presumption of Constitutionality: Protecting Property Rights A Central Governmental Function 109 6 Unconstitutional Takings of Private Property 139 7 Conclusion 185 Notes 193 Table of Cases Volume II 211 Index 215
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Figures 2.1 From Popular Sovereignty to Centralized Power 9 6.1 Possible Descriptions of the Parcel as a Whole 166
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Preface Much has been written about private property and the US Constitution. A central focus is always a clause in the 5th Amendment stating: nor shall private property be taken for public use without just compensation. Most writers, no matter their politics, agree that the US Supreme Court has done a less than stellar job of interpreting and applying this clause. I share that judgment, and offer some thoughts in Chapter 6 on how the Court has gone wrong and what it might do to adopt a better course. But this book is not just about the so-called takings clause and the protections it does or does not provide for private property. By examining the historic and contemporary understandings of the discreet powers and responsibilities of government as they affect private property, I hope to illuminate the weaknesses (and occasional strengths) of Supreme Court property rights jurisprudence. Standing alone, this book is about government powers as they operate to define, enforce, regulate, and sometimes limit or destroy private property rights. A companion volume, Private Property and State Power, examines the nature of property, its justifications, the private and social consequences of different property regimes, and the general relationship between private property and government power. Each book stands on its own, but the reader of this book may find the other volume helpful to a deeper understanding of the ubiquitous social institution of private property. The two books represent the culmination of four decades of learning, teaching, and writing about private property and the constitution. Teaching courses in natural resources law, water law, legal philosophy, legal history, torts, and constitutional law has afforded me the opportunity to consider private property and the constitution from many different perspectives. Though my property law professor colleagues may disagree, I like to think that my never having taught property law allows me some perspective that might have been compromised by mastering the arcane intricacies of the common law of property. To borrow from the first edition of Paul Brest s constitutional law casebook, my perspective is more that of the parachutist than the truffler.
xii Preface My first serious exposure to the US Constitution came in college courses taught by Richard Sheridan and Richard Roeder at Montana State University. I don t recall that much time was devoted to the constitutional guarantees of property rights in either course, but I do know that most constitutional law courses taught at most American law schools dedicate very little time to property rights. Indeed when I taught for a semester at the University of Oregon I was told that they generally didn t bother with the subject at all. But thanks largely to the expansive regulatory initiatives inspired by the environmental movement, I have profited from an abundance of writing on the subject of the 5th Amendment Takings Clause. Many people, too numerous to mention, or even remember, have contributed to my thinking about private property and the constitution. Two generations of law students have tested my ideas and taught me that learning is as much about overcoming biases and preconceptions as it is about acquiring knowledge and the tools for analysis and persuasion. Colleagues at Lewis & Clark and faculty from dozens of other schools have reinforced, but more often challenged, my ideas (the academy being what it is in our modern era of liberal dominance). As something of a counter to the generally statist thinking in the legal academy, I have had the opportunity to represent the interests of property owners in court as legal counsel and more often as amicus (friend of the court). All of that and more are the ingredients of a sort of property rights stew from which the ideas expressed in this book and its companion volume have emerged. I am grateful for the generous support of the Hoover Institution s John and Jean De Nault Task Force on Property Rights, Freedom and Prosperity, and particularly to the Task Force s co-chairs Terry Anderson and Gary Leibcap. Thanks go also to Lynn Williams and Tami Gierloff of Lewis & Clark s Boley Law Library for always prompt and skilled research assistance, to Joseph Westover for editorial assistance and seemingly enthusiastic transformation of my reference notes into proper citations (appearing as endnotes to each chapter), to my daughter Claire for assistance with the chart that graces Chapter 2, and to Claire s siblings Kurt, Erica, Spencer, and Meg, all of whom inspire me in everything I do, and no doubt could have assisted with the chart if asked. Finally I am grateful to my wife Leslie Spencer for encouragement and support, and for helping me to understand that in writing, less is usually more.