Private Property and the Constitution: State Powers, Public Rights, and Economic Liberties
Language: English
Pages: 220
ISBN: 1137376600
Format: PDF / Kindle (mobi) / ePub
This book details the relationship between private property and government. As private property is important to both individual welfare and the public interest, the book provides an intellectual framework for the analysis and resolution of contemporary property rights disputes.
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World, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–1–137–37660–2 Library of Congress Cataloging-in-Publication
property without the owner’s consent? Did Kent mean to say that it derived from the constitution of the state? Or did he mean to say that it was inherent in the constitution of every state and nation? Clearly he meant the latter, and therein lies an important, but littlenoticed, link between the power of the state and the rights of property owners, at least as those matters were understood in the colonial and early national periods of American legal history. When the power of the state to take
to invalidate a grant of eminent domain power to a water power company on the ground that “the public . . . [did not] have the privilege of participating in it directly and immediately.”51 While acknowledging that “[t]here must be a public use or benefit,” the court refused to invalidate the private corporation’s use of eminent domain, stating that “what . . . [the public benefit] shall consist of, or how extensive it shall be to authorize an appropriation of private property, is not easily
and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public, we should be at a loss to say what is. The inadequacy of use by the general public as a universal test is established.69 Few would have found the words that Holmes used, but his argument flows naturally from the generally accepted idea that the eminent
t i t u t i o n conditions are permissible, but suggested that those that would have been imposed on Koontz had he proceeded with his project might not satisfy the Nollan and Dolan requirement that there be “a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use.”24 That question, said Alito, must be addressed by the Florida courts on remand. The decision was a clear, if narrow, victory for property owners. No longer must an owner agree to
