The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position, roughly speaking, did (and to a large extent does) afford some level of strict scrutiny for the regulation of speech while adopting a far more deferential view towards the regulation of property. I thought that this result was indefensible for two related reasons. First, as a matter of textual interpretation, neither the First Amendment guarantee of the freedom of speech (i.e., “Congress shall make no law abridging the freedom of speech”) nor the Fifth Amendment protection of property (i.e., “Nor shall private property be taken for public use, without just compensation”) bears on its surface any sign of the differential levels of respect that might be accorded to property and speech. Second, as a matter of functional use, both provisions were aimed at the chronic dangers of representative government. More concretely, both clauses are directed to the way in which public power can be used to transfer wealth and opportunities from one group in society to another. In the short term, one group or the other might celebrate its factional victory. But, in the long run, the divisive impact of faction will result in the diminution of freedom and opportunity for us all. Freedom of speech and private property were thus seen as bulwarks not of privilege or special power. They were defended for their social function in limiting the abuses of power.
Richard A. Esptein,
Life in No Trump: Property and Speech Under the Constitution,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol53/iss1/16