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Abstract

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor Epstein argues that the “attitude of distrust” with which courts approach government regulation of speech should animate—in equal measure— their approach to government regulation of property. Both are constitutional rights, of equal statute; both are of critical importance to the freedom of individuals; both should, as a matter of law and policy, be afforded the same protection, the same presumptive power. In decrying the courts' apparent failure to protect property rights, Professor Epstein is, of course, not alone. An array of academic and political commentators has lamented the courts' apparent failure to recognize government regulation of land use or other government regulatory or distributive efforts as “takings” by government which should—under the Fifth Amendment's explicit terms—be compensated. Professor Epstein's juxtaposition of free speech rights and property rights serves, however, to place this question in particularly sharp relief. If—as a matter of explicit constitutional text— we protect speech, and if—also as a matter of explicit constitutional text—we protect property, how can we justify the stringent protection of the former, and the very weak protection of the latter? We might like land-use controls or environmental controls; we might like state laws that take wealth from one person and give it to another; but the fact that such sentiments are held—even by a majority of citizens—does not justify disregard of what the law, as a constitutional matter, requires. Aren't rights, after all, rights? I shall argue that Professor Epstein and other property-rights advocates are wrong: that a simple equation cannot be drawn between rights to free speech and property rights, with the “politics of distrust” the required principle for considering government regulation of each. Rather, I shall argue that there are fundamental differences between free speech rights and property rights, and the public interests that oppose them, which require very different treatment. I shall argue that the apparent judicial disregard of property rights is not an unprincipled aberration in our law; rather, it is a reflection—a genuine, even compelled reflection—of the deeper tensions and structures that are an inherent part of property/public interest conflicts.

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