Originalism and Constitutional Property Rights Jurisprudence [2019 NLC]

Описание: Much controversy surrounds the extent to which the United States Constitution protects property rights. During the New Deal, most constitutional property rights came to hold the same low status as the liberty of contract recognized in Lochner v. New York and other economic rights recognized in substantive due process doctrines. Now, most lawyers and judges recognize that property rights are protected against federal intrusion (by the Fifth Amendment's Takings Clause) and state intrusion (by the Fifth Amendment as incorporated through the Fourteenth Amendment's Due Process Clause). Yet there are also vigorous debates about what these clauses mean and how far they sweep in protecting property rights. The 2005 decision Kelo v. City of New London reopened basic questions about what it means for a taking to be for public use. And in a concurrence in the 2017 regulatory takings case Murr v. Wisconsin, Justice Thomas opined that the Court had “never purported to ground [regulatory takings] precedents in the Constitution as it was originally understood” and called on lawyers and scholars to clarify whether regulatory takings doctrines are grounded in the Constitution’s original meaning. This session will showcase scholars on both sides of these debates: scholars who believe the Constitution does little to protect property from use- and value-destroying government actions, and scholars who believe that the Constitution does provide robust protection to property from such actions.

FEATURING

Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University

Prof. Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law, Harvard Law School

Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School

Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Moderator: Hon. Elizabeth “Lisa” Branch, United States Court of Appeals, Eleventh Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.