18 of 18 people found the following review helpful:
5.0 out of 5 stars
A Preemptive Strike at Harry Blackmun, June 10, 2002
This review is from: Property Rights: From Magna Carta to the Fourteenth Amendment (New Studies in Social Policy, 3) (Hardcover)
I thought, "Another book on the history of property rights. Is there a reason for it?"
There was. Though I didn't see it right away, I knew of the author, Prof. Bernard Siegan of the University of San Diego School of Law. Siegan had written two books, Economic Liberties and the Constitution (1980) and Property and Freedom (1997), both of them supportive of property rights and the freedom of contract.
This new book begins with the Magna Carta, from which sprang the phrase "due process of law." Siegan traces the historical march of due process, and its allied idea that when the state takes private property it should have to pay. Through the English common law and commentaries, the American state constitutions and the U.S. constitution, Siegan lines up his analytical cannons. The enemy is at first unidentified. Then, halfway through, he appears: Justice Harry Blackmun, who brought up the losing side in the 1992 property-rights case, Lucas v. South Carolina Coastal Council.
In the majority's decision in that case, written by Justice Antonin Scalia, the supporters of property rights reclaimed important territory from the administrative state. But Blackmun, a defender of the state, penned an ambitious dissent. In the decade since the Lucas triumph, Siegan has seen Blackmun's dissent quoted again and again. More than anything else, Siegan's book is a preemptive strike against Blackmun's historical argument, to provide ammunition for justices who would reject it.
Blackmun argued that for more than a century, courts had been allowing governments to wipe out all commercial uses of property in order to protect the public good. There was, for example, Mugler v. Kansas, an 1876 case in which the owner of a brewery sued for compensation when Kansas went "dry." The court said it was too bad; that the legislature had declared beer to be "injurious to the health, morals and safety of the community," and Mugler was out of luck. Blackmun argued that this was normal. He wrote: "The principle that the State should compensate individuals for property taken for public use was not widely established in America at the time of the Revolution." He wrote, "State governments often felt free to take property for roads and other public projects without paying compensation to the owners."
Siegan argues that the American legal tradition was quite different from Blackmun's anti-property view. On the taking of property for roads, he shows that the main case Blackmun cited to prove his point does no such thing, and that of all the states as of 1860, only one, South Carolina, allowed the uncompensated taking of land to build roads.
Blackmun had not quoted any federal cases before 1870, but Siegan does. Siegan then offers 60 pages on the Fourteenth Amendment, focusing on the due process and the privileges or immunities clauses. Here he shows that the legislators who proposed these provisions, revised them, debated them and approved them thought of them as highly protective of property owners. They did not mean to say that state legislatures could devalue private property to near-zero by citing some general public interest.
In the final part of the book, Siegan goes well beyond a reply to Blackmun. Siegan presents the Fourteenth Amendment as the great battering ram for individual liberty, if only judges understood what it it was meant to say and do-particularly those old English phrases, "due process of law" and "privileges or immunities."
One may ask why all this history matters. One might as well ask why scholars today should be arguing so hotly about whether 19th century Americans owned guns. It is because we have the same issue today. And Siegan's argument in this book is part of an argument about what to do today about wetlands, salmon streams, urban-growth boundaries, design review and other such unhistorical things.
This book does not argue, as the pro-government side will probably portray it, that property rights are absolute. In our tradition, no rights are absolute. Some rights, such as the right to freedom of speech, have an extensive territory-greater today than in the 19th century. Some rights, such as the freedom to contract over the sale of one's labor, formerly had a large territory, and since the 1930s is vastly shrunken. Lucas and other decisions of the past 15 years have extended the right of property to a medium-sized domain, less than that of free speech but greater than freedom of contract.
Siegan's life work has been to make an historical and legal case for the property-rights territory to be larger. He makes it brilliantly in this book, and by focusing part of it on Blackmun, he raises the chance that his argument will count.
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1 of 21 people found the following review helpful:
1.0 out of 5 stars
Silent about original acquisition!, December 29, 2003
By A Customer
This review is from: Property Rights: From Magna Carta to the Fourteenth Amendment (New Studies in Social Policy, 3) (Hardcover)
Silent about original acquisition!
This book, which purports to be about property rights, is strangely silent about the concept of original acquisition. That is, the right to property is based by the method by which it was originally received. A simple example, if the property was stolen or it the original deed is false then the property is rightly not yours.
John Locke had something to say about this but that was a long time ago.
But in this book, the author is silent. And for good reason, for if he did discuss it, the topic would be embarrassing for North Americans for they would have to transfer land back to those they had stolen it from - i.e. the Native Americans.
In total, while I can agree the owning property is a good thing, it is only good when it has been acquired by the proper methods. But in North America it was stolen.
One star for dishonestly.
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