Do We Need to Impair or Strengthen Property Rights in Order to Fulfill Their Unique Role - A Response to Professor Dyal-Chand
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Do We Need to Impair or Strengthen Property
Rights in Order to Fulfill Their Unique
Role? A Response to Professor Dyal-Chand
Gideon Kanner*
I. INTRODUCTION
It cannot be doubted that among civil rights intended to be protected from
discriminatory state action by the Fourteenth Amendment are the rights to
acquire, enjoy, own and dispose of property. I
We see no reason why the Takings Clause of the Fifth Amendment, as much
a part of the Bill of Rights as the First Amendment or Fourth Amendment,
should be relegated to the status of a poor relation.... 2
In contrast with these Supreme Court pronouncements and the reasoning on
which they are based, the thesis of Professor Rashmi Dyal-Chand' s article is
that demoting property rights to poor relation status will somehow fulfill their
role as guardian of every other right.,3 Just how diminishing the status of a
basic Bill of Rights guarantee can fulfill rather than undermine its role,
Professor Dyal-Chand does not explain, thus bringing to mind the Vietnam era
line We had to destroy the village in order to save it. Given the ongoing
controversy over the use of government's power to take private property, not
only for legitimate public uses, but also for plainly private ones (even if the
latter are semantically disguised as a public benefit), it seems appropriate to
begin with a few words on the role of property in society-curiously, a subject
Professor Dyal-Chand does not address in his article.
* Professor of Law Emeritus, Loyola Law School, Los Angeles. Of counsel, Manatt, Phelps
& Phillips. Editor, Just Compensation, a monthly periodical on the law of eminent domain. By
way of full disclosure, I note that in the past I represented the Bishop Estate in an inverse
condemnation action unrelated to the Midkiff case discussed infra.
1 Lynch v. Household Fin. Corp., 405 U.S. 538,543 (1972) (quoting Shelley v. Kraemer,
334 U.S. 1, 10 (1948)) (internal quotation marks omitted).
2 Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
3 Rashmi Dyal-Chand, A Poor Relation? Reflections on a Panel Discussion Comparing
Property Rights to Other Rights Enumerated in the Bill of Rights, 16 WM. & MARY BILL RTS. J.
849, 861 (2008) ([P]erhaps it is not at all wrong for property rights to serve as the 'poor
relation' precisely so that they may fulfill their role as the 'guardian of every other right.'
(citation omitted)).](ViewImageLocal?handle=hein.journals/uhawlr31&div=18&collection=&method=preview&ext=.png&size=3)
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Do We Need to Impair or Strengthen Property Rights in Order to Fulfill Their Unique Role - A Response to Professor Dyal-Chand
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