Supreme Neglect: How to Revive Constitutional Protection For Private Property

by Richard A. Epstein

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 London decision 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 Neglect offers a compact, incisive look at this hotly contested constitutional right, championing property rights as an essential social institution.

208 pages, Hardcover

First published March 12, 2008

About the author

Richard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.

Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.

He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.

His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.

He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.

Reviews

[Matt · Rating 3 out of 5]

A useful primer offering a framework for thinking about the 5th Amendment's Takings Clause, but I would have appreciated more depth or, lacking that, at least a bibliography for further reading.

[Ben · Rating 5 out of 5]

I must admit up front that I am a strong libertarian / classical liberal & deliberately sought out this work by Professor Epstein because I have some familiarity with his other books and articles, all of which so far have resonated strongly with me. First, Supreme Neglect is probably going to be difficult to follow for those without some legal background. The crux of the book is that the Fifth Amendment's Takings Clause is fundamental not only to liberty, but also to having a system that works. When the government exercises its police power to take, whether through actual physical means or regulations, the Constitution imposes a framework through which the taking must be analyzed. Generally, if the taking is not specifically justified by the police power, such as in abating a nuisance, then the deprived owner must be fully compensated for his loss. However, the courts have struggled with interpretation of the Takings Clause and, since the FDR New Deal era, have simply gotten it wrong on a number of very important cases, including, for example, the recent infamous SCOTUS Kelo eminent domain case. This book is one of those that I will read and reference again and again simply because there is so much important material in it. Highly recommended for all interested in the classical liberal take on the intersection of Property Con law.

[Steve Haley · Rating 4 out of 5]

Supreme Neglect is an excellent expansion upon 'Takings,' which was Epstein's extensive analysis of imminent domain and private property rights as a overlooked (or at best under appreciated) cornerstone of an American citizen's rights. Although one could argue Epstein's strongly Libertarian views stray far afield from the original intent of the Constitution's framers, he makes very sound arguments that not only landmark cases like Kelo v New London, but also a variety of more common federal government actions are in effect transgressions upon the fifth amendment eminent domain clause due to failure to meet the Constitutional requirement of just compensation.

I can't recommend Supreme Neglect as a readers first foray into Epstein's very well argued and insightful works, but it's certainly a well considered and well written book. I rarely agree wholeheartedly with Epstein, but his books are well worth reading if you're even mildly interested in Constitutional law. Epstein is to Con law what Sowell is to economics.

[Robert · Rating 4 out of 5]

Epstein articulates a compelling case for his robust view of the Takings Clause of the US constitution.

Publishing in 2008 - three years after the Kelo v. New London decision in which the US Supreme Court upheld the eminent domain taking of Suzette Kelo's New London home as part of a development plan part of which was being given to Pfizer Corp. and part of which was going to be for other private persons - this book was part of the broader backlash against the Court's decision. To be fair, Epstein developed these ideas long before the 2005 decision in other books, like his 1985 book titled, simply, "Takings" (that book, "Takings", was the one that then Senator Joe Biden held up during the Clarence Thomas hearing in 1991). So it's not like Epstein, foaming with outrage, threw together a 186 page book ad hoc of incoherent ramblings in reaction to SCOTUS.

On the contrary, Epstein wrote a serious book based on his research and legal work. The takings clause is an integral and oft-overlooked bulwark against political overreach. And Epstein applies it to all kinds of takings - complete and partial physical takings (occupational), use and disposition and partition, total economic wipe-out, and (most controversially) regulatory takings. Shall not take property for public use without just compensation, a simple rule that has plenty of nuance and gaps to fill.

A fear is that requiring such a strict and comprehensive application of the takings clause would handcuff governments from, well, doing things we normally would want them to do, like urban zoning, creating public spaces, economically developing areas, preserving landmarks, and other regulation. And while Epstein himself may not like them in some ways, the system he lays out does not stop those governments from governing. Governments can still urban zone, create public spaces, etc. etc., they just gave to pay just compensation when they do it.

The worry about hand cuffs on governments may be a matter of degree. Yes, we know Epstein isn't putting a blanket prohibition on government takings, but putting the strictures on it as he says will slow things down too much, and some worthy projects won't get done. But that is where the debate can still be - are some of these marginal projects actually worthy or are the marginal projects actually abusive. I think that harm/benefit principle that Epstein talks about is the proper way to view those marginal projects. If they really have the upside that proponents think, then it should be worth it to pay for the takings. The government should do that analysis -- the good/worthy projects will go through, the bad ones won't.

And this brings me back to the Kelo decision. At the time, I think there was a lot of public outrage at what appeared to be an off-the-rails Supreme Court signing off on what New London wanted to do -- take homes from lower middle class folks to give it to a multi-billion dollar pharma company for private use. How could this be public use? This must be a new innovation perpetrated by an activist judiciary! Epstein shows, however, that this is not true, that the courts had strayed from public use into public benefit decades earlier. Sure, those older cases could have been distinguished, but the thread of logic from those older cases to Kelo is there.

Epstein makes a compelling case for his system, and this is an introductory text -- no footnotes or tons of jargon. Do yourself a favor and bask yourself in Epstein's book and use it to expand your view on constitutional jurisprudence.