The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they tend to have less significance when the state takes on a welfare cast. Perhaps change in viewing "property rights" under the Constitution is inevitable since the very philosophical concepts underlying "property rights," if they are not mutually conflicting, at least constitute a spectrum of relationships between the individual and the state which secures those rights. This spectrum inevitably reflects political ebb and flow. From the Washington Law Review Jurisprudential Lecture Series.
James L. Oakes,
"Property Rights" in Constitutional Analysis Today,
56 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol56/iss4/2