David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Social Philosophy and Policy 24 (1):289-305 (2007)
It is conventional to distinguish between an old liberalism, with a robust conception of private property and a limited role for government in the economy, and a new liberalism that permits government to override individual property rights in the pursuit of the general welfare. The New Deal is often taken to mark the dividing line between these two forms of liberal governance. But when we focus on property rights through the magnifying lens of Takings Clause jurisprudence, we find that the movement away from strong property rights begins not with the New Deal but in the late 19th century, at what is normally taken to be the peak of constitutionally protected private property. The much-criticized decision in Kelo v. New London (2005) represents, not a break with past doctrine, but rather its logical consequence. Protecting individual property-holders against expansive state powers of eminent domain runs into a structural conundrum: while categorical restraints on state power limit government's ability to promote important public purposes, an explicitly purposive approach renders all limits on government power (including individual rights) vulnerable to an aggregative calculus. The most plausible response is a two-tier approach: respect for legally established categories in ordinary circumstances, regardless of their aggregate consequences, and consequentialism in circumstances of emergency, when the lives or basic wellbeing of citizens are at stake. Judged against this template, the consequentialism guiding modern takings clause jurisprudence in ordinary, non-emergency circumstances is hard to justify.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Jason Brennan & John Tomasi (2012). Classical Liberalism. In David Estlund (ed.), The Oxford Handbook of Political Philosophy. Oxford University Press, Usa. 115.
Richard Oxenberg (2010). Locke and the Right to (Acquire) Property. Social Philosophy Today 26:55-66.
Hugh Breakey (2010). Natural Intellectual Property Rights and the Public Domain. Modern Law Review 73 (2):208-239.
Michael P. Zuckert (2007). On Constitutional Welfare Liberalism: An Old-Liberal Perspective. Social Philosophy and Policy 24 (1):266-288.
Thomas A. Horne (1994). Liberalism and the Problem of Poverty: A Reply to Ashcraft. Critical Review 8 (3):427-434.
Karl Widerquist (2009). A Dilemma for Libertarianism. Politics, Philosophy and Economics 8 (1):43-72.
Hugh Breakey (2009). Liberalism and Intellectual Property Rights. Politics, Philosophy and Economics 8 (3):329-349.
Richard Ashcraft (1994). Exclusive and Inclusive Theories of Property Rights: Rejoinder to Horne. Critical Review 8 (3):435-440.
Added to index2009-01-28
Total downloads15 ( #112,797 of 1,099,959 )
Recent downloads (6 months)4 ( #90,379 of 1,099,959 )
How can I increase my downloads?