Fundamental Property Rights

Abstract

It is ultimately, if not immediately, mysterious that American jurisprudence generally recognizes no constitutionally fundamental property rights, good as against the government. Generally, there is no distinctively property-based right or interest of which the holder may be deprived only upon a showing of a compelling state interest, coupled with a showing that the measure or action depriving the owner of her property is narrowly tailored to effectuate the measure's purpose.' This Article refers to several reasons why this may be so, but its central purpose is to specify at least a narrow but potentially significant class of property rights, indentifiable at reasonable cost in the judicial setting, that clearly merits the special protection accorded fundamental rights. To throw this narrow class into sharp relief, we will consider the legitimacy of their compensated but nonconsensual taking under the government's eminent domain power based on the current permissive case law, and from a perspective that draws upon the substance and methodology of less accomodating, and ultimately convincing, contemporary and classical legal philosophy.