Graduate studies at Western
Social Philosophy and Policy 24 (1):289-305 (2007)
|Abstract||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)|
|Through your library||Configure|
Similar books and articles
Jason Brennan & John Tomasi (forthcoming). Classical Liberalism. In David Estlund (ed.), The Oxford Handbook of Political Philosophy. Oxford University Press.
Richard Ashcraft (1994). Exclusive and Inclusive Theories of Property Rights: Rejoinder to Horne. Critical Review 8 (3):435-440.
Hugh Breakey (2009). Liberalism and Intellectual Property Rights. Politics, Philosophy and Economics 8 (3):329-349.
Karl Widerquist (2009). A Dilemma for Libertarianism. Politics, Philosophy and Economics 8 (1):43-72.
Thomas A. Horne (1994). Liberalism and the Problem of Poverty: A Reply to Ashcraft. Critical Review 8 (3):427-434.
Michael P. Zuckert (2007). On Constitutional Welfare Liberalism: An Old-Liberal Perspective. Social Philosophy and Policy 24 (1):266-288.
Hugh Breakey (2010). Natural Intellectual Property Rights and the Public Domain. Modern Law Review 73 (2):208-239.
Richard Oxenberg (2010). Locke and the Right to (Acquire) Property. Social Philosophy Today 26:55-66.
Added to index2009-01-28
Total downloads10 ( #114,394 of 723,010 )
Recent downloads (6 months)1 ( #61,087 of 723,010 )
How can I increase my downloads?