CHAPTER 2 The Strange Career of Private Property And The Police Power
| Jurisdiction | United States |
(May 1995)
The Strange Career of Private Property And The Police Power
University of Denver College of Law
Denver, Colorado
2.01 THE POLICE POWER AND PRIVATE PROPERTY RIGHTS IN NATURAL RESOURCES
2.02 ERA I: REPUBLICANISM, FAITH IN THE LEGISLATURE, AND SUBSERVIENT PRIVATE PROPERTY
A. FAITH IN LEGISLATURES
B. VIRTUE
C. REPUBLICANISM AND PROPERTY
2.03 ERA II: LOCKIAN LIBERTARIAN PRIVATE PROPERTY, JUDICIAL PROTECTION OF VESTED RIGHTS, AND LAISSEZ-FAIRE LEGISLATURES
A. PHILOSPHIES INFLUENCING LIBERTARIAN VIEW OF PROPERTY
B. THE ACTIVE APPROACH TO PROPERTY PROTECTION
C. LAISSEZ-FAIRE LEGISLATURES
2.04 ERA III: A RETURN TO REPUBLICANISM -- THE MODERN REGULATORY STATE, JUDICIAL DEFERENCE TO SOCIAL AND ECONOMIC LEGISLATION, AND PROPERTY AS AN INFERIOR INDIVIDUAL RIGHT
A. RETROACTIVITY
B. VESTED RIGHTS
C. SUBSTANTIVE DUE PROCESS
D. THE CONTRACTS CLAUSE
E. THE TAKINGS CLAUSE
2.05 RETHINKING THE NATURE OF PRIVATE PROPERTY, THE PROPER ROLE OF THE POLICE POWER, AND JUDICIAL RELUCTANCE TO OVERTURN LEGISLATIVE DECISIONS AFFECTING ECONOMIC RIGHTS
A. RETHINKING THE IMPORTANCE OF PRIVATE PROPERTY
B. DOUBTS ABOUT CONTINUED DEFERENCE TO THE LEGISLATURE AND THE POLICE POWER
1. PUBLIC CHOICE THEORY
2. THE UNINTENDED CONSEQUENCES OF CONTINUED RELIANCE ON THE POLICE POWER
C. THE COURTS, THE CONSTITUTION, AND THE PROTECTION OF PRIVATE PROPERTY FROM THE POLICE POWER
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2.06 PROPERTY RISING: THE RESURRECTION OF JUDICIAL PROTECTION OF ECONOMIC INTERESTS
A. POLICE POWER VULNERABLE BECAUSE ITS IMPACT ON PRIVATE PROPERTY IS UNFAIR
1. RETROACTIVITY
2. VESTED RIGHTS
3. EQUITABLE ESTOPPEL
B. POLICE POWER VULNERABLE BECAUSE ITS IMPACT ON PRIVATE PROPERTY MAY BE UNCONSTITUTIONAL
1. Takings Clause Violation
2. Contracts Clause Violation
3. Due Process Violation
C. LEGISLATIVE RESTRICTION_ON_THE_POLICE_POWER
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2.01 The Police Power and Private Property Rights in Natural Resources
The relationship between mineral and resources development and land use planning rules is, in effect, a relationship between private property interests and the police power. The private property interest is what is owned under the common law by the would-be developer and user of the resource; the police power is the inherent authority of the government to affect and limit the developer-owner's use of that resource for the public good (a "land use" regulation is simply shorthand for an exercise of the police power that restricts uses of property). The private property right in the resource may stem from federal or state law (including common law or statutory law). The police power restriction on that right may originate in federal statutory law, or state or local law. The ultimate source of the restriction is the legislature (the Congress, a state legislature, a board of county commissioners, or a city council), although the restriction may be an implementation of legislative policy by an agency.
Regardless of the source of the private right or the government power, the dynamic is the same — the private party's interest in the resource is somehow constricted by the exercise of some government power. William Blackstone noted this dynamic when he conceded that while an individual's property right includes "the free use, enjoyment and disposition of all the owner's acquisitions," this powerful right is subject to "the laws of the land."
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The private property interest may take one of many forms. It may be a fee interest, or some interest less than a fee, such as a lease or an unpatented mining claim. When the property interest is created, the interest itself has identifiable boundaries which can be measured. It may also stand alone, or it may relate to another private interest (e.g., one private party may own a subsurface mineral estate and a different private party may own the surface agricultural interest; an owner of a water right has an interest defined in large part by how other water rights holders use the water).
The exercise of the police power affecting this property interest may also assume several forms. The law may deny any use of the property, it may halt development of the property for a fixed but temporary period of time (a moratorium), or it may impose some limitation on the property. The limitation may in the nature of a general land use restriction, such as a zoning use classification (specifying the kinds and numbers of uses allowable in an area). Or the limitation may be in the form of a condition, which must be satisfied before the private property owner is granted permission to develop the resource. The condition is usually property-specific, relating just to the particular use made of the resource by the property owner.
There is an obvious tension between private property interests and the police power. The owner of the property interest typically wishes to use and develop it without interference from the government, while the government wants to regulate and restrict the property interest if its use and development has any negative consequences for others. This tension is often refereed by two legal institutions — the United States Constitution and the judiciary. If the private property owner believes that the police power limitation has "gone too far," the owner can turn to the Constitution to seek protection. The judiciary determines the extent to which specific phrases and clauses in the Constitution provide protection to property owners assaulted by the police power.
Judicial interpretation of the Constitution may or may not be protective of private property interests depending upon whether courts defer to legislative judgments about how the police power should be exercised. If courts are inclined to be deferential to legislative exercises of the police power, then property interests will be less protected by the Constitution. Conversely, if courts are willing to make an independent assessment of the wisdom, rationality, and fairness of
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a legislative decision about property, then property interests are more likely to be protected under the Constitution.
Judicial restraint or activism in the area of constitutional law and property rights is often a function of prevailing views of private property and the police power. If private property is considered subservient to the public good, then the police power will be dominant, even at the expense of private property interests, because its primary role is to advance the public good. On the other hand, if use and development of private property is seen as a primary means of advancing the public welfare, then courts will be inclined to interpret the Constitution so as to protect property from the police power. Courts will be particularly sympathetic to private property concerns when an exercise of the police power seems heavy-handed and oppressive with respect to the private property interest, and of marginal gain with respect to the public interest.
If one wishes to assess if land use regulations (a species of the police power) are more or less likely to withstand a resource owner's attack upon their underlying constitutionality, a relevant inquiry is whether the judiciary is favoring private property interests or deferring to legislative exercises of the police power. Throughout the last half of the 20th century, courts classified private property rights as a subset of private "economic rights." As such, when police power or land use restrictions burdened or interfered with the acquisition, use, development, or disposition of property, especially property interests in minerals or natural resources, these restrictions were usually sustained in the face of constitutional challenges. This is because, beginning sometime in the mid -1930s, the courts have deferred to legislative determinations regarding economic rights. Ironically, this period of judicial deference to the police power with respect to economic rights coincided with another period of focused judicial activism, when courts overturned police power exercises affecting other constitutional rights, such as freedom of expression, criminal procedural safeguards, rights of equal treatment by race or gender, and the right of reproductive privacy.
This deferential attitude towards the police power has not always been predominant. At times the courts have protected private property interests, while at other times the courts have worked to largely immunize the police power from the Constitution when it has affected
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property. This paper examines this alternating ebb and flow of judicial restraint and activism regarding the police power and private property.
It will be seen that there have been three distinct eras in the career of the police power's relationship with private property. In the first era, during most of the Colonial period, republicanism was the dominant political philosophy. Republicanism was characterized by faith in the legislature, and a perception of private property as being inferior to the general welfare of society. In the second era, which lasted from the ratification of the Constitution until the mid-1930s, the idea of property underwent a fundamental transformation. Property was no longer a static agrarian concept entitling an owner to only undisturbed enjoyment; rather, property was a means of ensuring the growth of the country's markets if property could be put to productive use. During this era, courts protected private property interests (and economic interests) from the police power through a variety of constitutional doctrines. With the rise of the New Deal, a third era again reversed the power relationship between property and the police power. Centralized government regulation of private property became the norm, strengthened by judicial deference to the legislature in matters involving property and...
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