(Return to main path )

I'm glad you have raised this issue. You know it's important to me. And I agree that how we view property is fundamental to how we view the proper scope of government, government regulation, and the level of taxation.

Let me just throw in a little history here.

There was a time in the late 19th and early 20th centuries when the rights of property and the right of contract were considered sacrosanct. There were lots of Supreme Court cases in which strong versions of those rights were upheld. Maybe the most famous was the 1905 case of  Lochner v. New York . In 1895 the State of New York passed a law called the Bakeshop Act that limited the number of hours that a bakery employee could work in one week. Joseph Lochner, the owner of a bakery, was fined for breaking the law and appealed his conviction. The case ended up in the Supreme Court and turned on whether the law violated the liberty of contract enjoyed by employers and employees. The Court affirmed that it did just that. It did not say that the right of contract was absolute, but it did not see any reason to override it in this case.

We have come a long way since Lochner. In the mid-1930s the Supreme Court rejected much of the New Deal legislation promoted by the Roosevelt administration. But by the late 30s, the situation had changed. Some justices, like Justice Roberts, moved into the more liberal or activist camp. Others retired from the Court. By 1940 the Court had shifted decidedly toward a more flexible and limited view of property rights and the right of contract. We have been living with that view ever since.

Today, in effect, the Federal Congress assumes that it can regulate property more or less as it wishes. (And we have tens of thousands of pages of regulations to prove it.) The Supreme Court has placed property rights on a lower tier than some other rights (especially free speech rights). The contrast is dramatic. Interference with free speech can only be justified by a compelling state interest, but interference with property can be justified by pointing to almost any desirable result.