Alexander Hamilton said at the Constitutional Convention of 1787 that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.” James Madison, similarly, wrote that “government is instituted to protect property of every sort.” Madison tried to ensure that the new Constitution would honor that principle, in part by authoring the takings clause of the Fifth Amendment, which restricts the government’s power to take private property.
Today, however, property rights receive only weak constitutional protection. In recent decades, the courts have too often allowed governments to violate property rights with little or no judicial scrutiny.
This should concern anyone who cares about protecting the rights of minorities and the poor. These groups are the primary victims when property rights are violated. They have seen the state condemn their homes for dubious private “development” projects. They have seen law enforcement seize their assets even when they have never been charged with any crime, much less convicted. And they have been shut out of housing and job opportunities by onerous zoning laws that block housing construction. These groups have the most to gain from stronger protection for property rights, which would enforce tighter constraints on government’s power to take property and block development.
Constitutional protection for property rights began weakening in the early 20th century. That shift was largely driven by Progressives’ perception that property rights mainly benefit the wealthy, and that they were an obstacle to benevolent, expert social planning. The experience of the last 80 years suggests that the very opposite is true. Social planners are usually far from wise and benevolent, and the people who suffer most when property rights are undermined are usually poor people, minorities, and anyone else with little political power. Recent years have seen some progress on strengthening protection for property rights. But much more is needed.
Let’s begin with what’s in the Constitution itself. The Fifth Amendment mandates that the government can only take private property for “public use.” This is a crucial constraint on the government’s power of eminent domain, which enables the state to force owners to turn over their property to the state, even if they refuse to sell voluntarily. During the late 18th and 19th centuries, courts usually interpreted “public use” as either government ownership or private ownership in which the private holder is legally required to serve the entire public. The former covers situations in which land is taken for purposes of building public infrastructure such as roads or military bases. Public utilities are examples of the latter. Even when under private ownership, they are legally forbidden to turn away members of the public willing to pay for their services; ordinary private businesses, by contrast, are largely free to accept or reject customers as they please. This “narrow” view of public use was in accordance with the original meaning of the takings clause, and also of the Fourteenth Amendment, which first made the Bill of Rights applicable to state and local governments, in addition to the federal government.
But in the 20th century, courts began to shift toward what was previously the minority view, which held that a public use exists whenever the public could potentially benefit from the taking. This culminated in the Supreme Court’s 1954 ruling in Berman v. Parker, which upheld an “urban renewal” condemnation transferring private property to private developers, as part of a project that displaced some 5,000 poor African Americans in Washington, D.C. The land was used to build more expensive housing, occupied mainly by whites. As the legal scholar Wendell Pritchett points out, it was both ironic and tragic that a ruling that “enabled institutional and political elites to relocate minority populations and entrench racial segregation … was decided just six months after Brown v. Board of Education” by a Court that included nearly all the same justices. While most of the justices were not racial bigots, their lax attitudes toward property rights blinded them to the harm their ruling caused to the very people they sought to protect against oppressive government policies in other contexts.
In the decades since Berman, “blight” and “economic development” takings sponsored by federal, state, and local governments have forcibly displaced hundreds of thousands of people, most of them poor minorities—a pattern that led James Baldwin to denounce urban renewal as “Negro removal.” While such takings are not nearly as common today as they were in the 1950s and ’60s, they still occur in many areas, and still disproportionately affect racial and ethnic minorities.