"A Poor Relation?"* Reflections on a Panel Discussion Comparing Property Rights to Other Rights Enumerated in the Bill of Rights

Article excerpt

Introduction

The purpose of this Essay is to summarize and reflect upon the second panel discussion at the Third Annual Brigham-Kanner Property Rights Conference at William & Mary School of Law, October 6-7, 2006. The panel was entitled "Comparing the Treatment of Property Rights to the Protections Given to Other Rights Under the Bill of Rights." As described by Professor Eric Kades, the organizer of the conference, the panel's topic was inspired by a statement by Justice Rehnquist in the case of Dolan v. City ofTigard: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation . . . ."! By virtue of their location in the Bill of Rights are the property rights embodied in the Fifth Amendment as important as the other rights in the BuI of Rights?2 Are they somehow even more important? Are there any textual or other reasons to treat these rights differently from other rights in the Bill of Rights? These were among the questions addressed by the panel participants and the thoughtful discussion that followed their presentations.

This Essay will proceed as follows. Part I will summarize the major points raised by each of the panelists. It is important to note at the outset that this summary is not an attempt to capture everything that each of the panelists said. Indeed, many important details and subtleties will be omitted here. Nor does it necessarily reflect the points each speaker emphasized. Rather, I seek in this Part to draw out common themes among the panelists. Part I will also summarize the discussion that followed the presentations. Part II will explicate and reflect upon some of the major themes that were raised.

I. SUMMARY

A. The Panelists

1. James W. Ely, Jr., Milton R. Underwood Chair in Free Enterprise, Professor of Law, Professor of History, Vanderbilt University Law School

Professor Ely, who was the recipient of this year's Brigham-Kanner Property Rights Prize for his numerous critically acclaimed books and articles on property rights, emphasized that property rights receive secondary treatment compared to other rights in the Bill of Rights. On the basis of his extensive historical research, Professor Ely concluded that the Framers of the Constitution of the United States and the thirteen original states did not draw distinctions in priority between economic and personal rights.3 In The Guardian of Every Other Right, Professor Ely elaborates on this point: "[T]he Framers saw property ownership as a buffer protecting individuals from governmental coercion. Arbitrary redistributions of property destroyed liberty, and thus the Framers hoped to restrain attacks on property rights."4 According to Professor Ely, the Framers were concerned that, without property rights, it would be impossible to attain these important personal rights.5

Professor Ely also commented that the views of the Framers of the U.S. Constitution, as well as those of the original thirteen states, are not mainstream views today.6 Instead, judicial, legislative, and public opinion today appears to prioritize personal rights over economic rights.7 Professor Ely documents this shift extensively in The Guardian of Every Other Right. He describes, for example, the push after World War ? "to secure equal rights for racial minorities and the campaigns for environmental and consumer protection" which "further restricted the use of property and economic liberty."8 He concludes that "[a]s the network of economic regulations grew more intrusive, there was an erosion of individual property rights."9 In that respect, he argues, contemporary mainstream views of property rights are not true to history.

2. Gideon Kanner, Counsel, Manatí, Phelps & Phillips and Professor Emeritus, Loyola Law School, Los Angeles

Professor Kanner, an experienced appellate attorney and eminent domain expert who has represented property owners in a number of cases before the United States and California Supreme Courts, argued that property rights receive "disparate" treatment from other rights in the Bill of Rights. …