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Published online by Cambridge University Press: 18 December 2006
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.
