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Precarious Property

By: Guy Burnett
January 18, 2017

iscovery of the apparent precariousness of property rights following the Supreme Court’s Kelo v. the City of New London (2005) decision shocked and dismayed Americans across the nation. Since then, academics and law professors have written several good—and not so good—books and articles defending such rights. Timothy and Christina Sandefur’s Cornerstone of Liberty: Property Rights in 21st-Century America is a good one, offering a well-researched, thoroughly documented study of Takings Clause abuses at local levels throughout America. First published before Kelo, their new edition examines the case while strenuously defending constitutional property protections. For anyone interested in property ownership, eminent domain, or the 5th Amendment, the book—from two experienced litigators with the Goldwater Institute—is a useful tool.

Kelo threw into relief the 100-plus year tension between progressive and traditional views of property rights. Polls taken immediately after the decision showed that more than 90% of Americans opposed it; in 2008 88% of Americans agreed that private property rights are “just as important as other rights like freedom of speech and religion.” The popular reaction, including protests, vigils, and vitriolic newspaper headlines, in the wake of the decision baffled progressive city and state officials. Even the Supreme Court wasn’t immune from attack: The Economist declared Kelo the worst decision Justice John Paul Stevens had ever made, and a petition circulated to replace Justice David Souter’s home with a hotel called “Lost Liberty Inn.” (It never materialized.)

Though the Sandefurs examine Kelo’s highlights and provide the necessary background of those involved, they don’t completely dissect the case’s opinions and implications. In a book dealing with Takings, the case—which altered much of the 5th Amendment’s legal and political interpretation—should have been given more attention. (More in-depth books on the case include my own, The Safeguard of Liberty and Property: The Supreme Court, Kelo v. New London, and the Takings Clause [2015], and George Mason Law Professor Ilya Somin’s The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain [2015].)

Where the book excels is in the voluminous case studies on takings abuses. The Sandefurs reveal the slow erosion of the 5th Amendment’s property protections in cities and counties nationwide. Since the beginning of the Progressive Era, state and local governments have operated in legal gray areas—Regulatory Takings, Zoning, Civil Asset Forfeiture, and Redevelopment Takings, to name a few—to create “model cities” while skirting the constitution. As the authors show, the burden of these expensive renewal projects is disproportionately shouldered by low-income and minority citizens. Justice Clarence Thomas soberly noted this in his Kelo dissent: “Urban renewal projects have long been associated with the displacement of blacks.”

Traditional Takings jurisprudence was overhauled in the opening decades of the 20th century as trust in planning professionals took hold in legislative and judicial proceedings. “The rights of property and liberty of the individual,” noted Justice Brandeis, “must be remolded, from time to time, to meet the changing needs of society.” State and local governments increasingly wielded a muscular eminent domain power—a power consistently upheld by the courts. Many city governments began viewing property as a public, not private, good, and pursued their political and economic goals at the cost of 5th Amendment protections.

The Sandefurs splendidly summarize and analyze post-Kelo reforms. Many states have passed laws with enough ambiguity to keep the door open for future abuses, founding principles be damned. Unless citizens demand a change, they will be at the mercy of the politically powerful. Not every state has failed to reform, however. Arizona’s Proposition 207 actually reverses the progressive trend. The law’s language leaves little room for interpretation, and even specifically defines public use in the traditional constitutional understanding. If property is to be protected, the Sandefurs argue, more laws like Proposition 207 must be passed and enforced.

Traditional property rights are a stumbling block for those government officials and academics who, the authors write, “regard such a notion as a passé superstition.” The Sandefurs argue instead that the traditional property rights’ understanding has “a moral significance and a constitutional dimension.” In a work of this size, however, they cannot adequately explore the moral and philosophical underpinnings of subjects such as ownership, property, privacy, society, and security. They rely on a small number of scholars (mostly modern and mostly economic) to buttress their understanding of property, but ignore the rich political philosophic tradition from the past several centuries on the subject. They focus mainly on an innate sense of justice and case studies to prove their points. Of course, reaching the philosophical heart of their subject would likely entail several more volumes.

Shortcomings aside, Cornerstone of Liberty is a tremendous resource, contrasting the progressives’ ever-expanding centralized planning with the traditional understanding of private property as a constitutional right. Not everyone has lost a home to eminent domain, but, as with any constitutional provision, vigilance is vital. “A nation that does not recognize—or understand—property rights,” the Sandefurs conclude, “is ultimately beyond redemption.” Without understanding and fighting for the constitutional guarantee of property rights, property will cease being a right and become a mere privilege.