Tuesday, April 19, 2005

More on property rights

Referring back to my recent post concerning property rights: this paragraph is part of a much longer piece on judicial activism at the Volokh Conspiracy blog

A new breed of theorists is calling for vigorous judicial activism in defense of--what else?--property rights. Concurrently, the pre-New Deal Supreme Court, which struck down federal and state laws against union busting, child labor and other abusive business practices, is back in favor. . . . This neo neoconservatism has been most thoroughly developed by University of Chicago Law professor Richard Epstein, one of the administration's most influential legal advisers. . . Epstein argues that those clauses of the Constitution that forbid the government to take over private property except for public use and with fair compensation, and that bar the states from excessive interference with contracts, were intended to ensure that private property remained virtually sacrosanct. He then reads those clauses as rendering unconstitutional most welfare, environmental, gift tax, renewal, zoning and rent control laws, along with almost every other piece of social legislation of the past two centuries. Unlike most constitutional lawyers, he thinks the Court decided correctly in Lochner v. New York, when, in the name of property and contract rights, it struck down an attempt to limit working hours for bakers. . . . Such judicial activism is usually condemned in the administration circles. . . . Nevertheless, this new faith in an activist judiciary is gaining ground among some on the right who are normally its harshest critics.[emphasis added]

This seems to be related to my earlier question about what it means that Florida is a "strong property rights state". I haven't yet found a weak property rights state to make a contrast with.

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