Supreme Neglect: How to Revive Constitutional Protection for Private Property

Supreme Neglect: How to Revive Constitutional Protection for Private Property

Supreme Neglect: How to Revive Constitutional Protection for Private Property

Supreme Neglect: How to Revive Constitutional Protection for Private Property


As far back as the Magna Carta in 1215, the right of private property was seen as a bulwark of the individual against the arbitrary power of the state. Indeed, common-law tradition holds that "property is the guardian of every other right." And yet, for most of the last seventy years, property rights had few staunch supporters in America.

This latest addition to Oxford's Inalienable Rights series provides a succinct, pointed look at property rights in America--how they came to be, how they have evolved, and why they should once again be a mainstay of the law. Richard A. Epstein, the nation's preeminent authority on the subject, examines all aspects of private property--from real estate to air rights to intellectual property. He takes the reader from the strongly protective property rights advocated by the framers of the Constitution through to the weak property rights supported by Progressive and liberal politicians of the twentieth century and finally to our own time, which has seen a renewed appreciation of property rights in the aftermath of the Supreme Court's landmark Kelo v. New Londondecision in 2005. The author's own powerful defense of property rights threads through the narrative. Using both political theory and economic analysis, Epstein argues that above all that private property is a sound social institution, and not just an excuse for selfishness and greed. Only a system of private property lets people form and raise families, organize religious and other charitable organizations, and earn a living through honest labor.

Supreme Neglectoffers a compact, incisive look at this hotly contested constitutional right, championing property rights as an essential social institution.


I think it is appropriate to offer a short autobiographical account of why and how I became interested in the constitutional protection of private property under the takings clause. the explanation lies, in an odd sense, in the peculiar path of my own education, which began with my exposure to Roman law and the common law while I was a student at Oxford University in the mid-1960s. the emphasis in an English education was on private law subjects. Private law covers only disputes between ordinary individuals, where the role of the government is to adjudicate and enforce the rights of the litigants and to lay down rules of more general application for future disputes.

Private law dominated those studies because the English have no written constitution, and thus offer no explicit, but some customary, protection against government deprivation of property. But the early study of the common-law rules convinced me that these rights had a utility, reach, and inner coherence that explained their wide acceptance not only in England but . . .

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