A series of Supreme Court decisions beginning in the 1920s largely eliminated constitutional constraints on zoning.The Court found that zoning rules almost never qualify as takings, and that there are few other constitutional constraints in this field. Courts even permit zoning rules whose primary purpose seems to be to exclude the poor and lower middle class from areas inhabited by more affluent people. If not for these decisions, onerous restrictions that block all or nearly all construction of new housing would qualify as takings, because they undermine a major standard element of property ownership: the right to build on one’s own land.
There is room for reasonable disagreement about exactly where to draw the line on takings. But severe restrictions on ownership rights that are not justified by health or safety concerns are ripe for reconsideration. Such tightening of the takings doctrine is justified on both originalist grounds, which emphasize the need to protect traditional property rights against erosion, and living-constitutionalist concerns about the need to protect vulnerable groups against abuses of government power.
Some fear that strengthening protection for property owners will lead officials to forego beneficial regulations, particularly in the environmental field. But requiring compensation does not prevent the government from adopting new regulations. It just, in some cases, requires it to compensate owners for the losses they have suffered.
That requirement should not block regulation in cases where the social benefit is worth the cost. Government can recoup that cost in economic growth, higher tax revenue, and sometimes in other ways. But requiring compensation can help deter regulations that—like many forms of zoning—destroy more economic value than they create. If the cost of such regulations comes out of the government budget, officials may be more careful about imposing them.
Adam Serwer: The Supreme Court is headed back into the 19th century
Yet another area in which failure to protect constitutional property rights has had harmful consequences is what is known as asset forfeiture. These laws enable law-enforcement officials to seize property they claim may have been used in the commission of a crime, even if the owner has never been convicted of anything, or even charged. In some cases, the police can keep the proceeds from the seized property for their departments’ own use. In many states, owners have little opportunity to contest forfeiture, thereby enabling authorities to hold on to seized property for long periods of time, without so much as a hearing. Law-enforcement agencies regularly keep seized cars, cash, and other property for many months before the owner has any opportunity to recover it.
Asset-forfeiture abuse routinely victimizes innocent people and particularly harms the poor. In some years, police plunder more property through asset forfeiture than is stolen by conventional thieves. Asset forfeiture has attracted widespread opposition on both right and left. Many states have enacted laws curbing it, and a few have even abolished civil forfeiture altogether. Unfortunately, the Trump administration has reinstituted a federal policy that helps state and local law-enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves.