Property and Principle: A Review Essay on Bernard H. Siegan’s Economic Liberties and the Constitution

Economic Liberties and the Constitution, by Bernard H. Siegan. Chicago: University of Chicago Press, 1980. 383 pp. First edition available used; 2nd edition (2005) not recommended.

When the U.S. Supreme Court held last year that the Constitution’s “public use” limitation on the power of eminent domain would not restrain a municipality from taking the property of one citizen for the purpose of having it “redeveloped” as the private property of another, Justice Clarence Thomas dissented, noting: “Something has gone seriously awry with this Court’s interpretation of the Constitution.”1 Most people apparently agree: Public outcry has been so strong that eminent domain reform legislation has been enacted or proposed in more than forty states.2


Most close observers of the Court, however, were not so surprised by the outcome of Kelo vs. New London as by the triumphant fact that Kelo’s attorneys garnered four Justices in dissent. As the Court explained, its decision was dictated by a “longstanding policy of deference to legislative judgments” about what constitutes the right to private property.3 In a less heralded property rights case argued the same day as Kelo, the Court unanimously deemed “it remarkable, to say the least,” to believe that a rent control law should be overturned, since it would require “courts to substitute their . . . judgments for those of elected legislatures and expert agencies.”4

Despite joining the decision in the second case, Justice Thomas maintained in Kelo that “there is no justification . . . for affording almost insurmountable deference to legislative conclusions” about the constitutionality of confiscating private property.5 In reaching that conclusion he echoed the theme of Economic Liberties and the Constitution, an important book by the late University of San Diego School of Law Professor Bernard H. Siegan, published in 1980. The book is part legal history, part constitutional analysis, and part broadside against a false notion of “judicial restraint,” by which the federal judiciary has “abandoned judicial review of economic and social legislation, review which it had carried out during much of its existence.” The original edition is out of print but still widely available.6

The reader of Economic Liberties is shown that Kelo fits a nearly unbroken pattern of judgments regarding economic liberties cases since 1934. Consider Hawaii vs. Midkiff, the 1981 case previously the last word on eminent domain and on which Kelo relied: The court “made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use,”7 justifying the taking of private property. Midkiff’s 8-1 majority stood on the more general principle that “[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their [independent judgment].”8 The same idea was present in Berman vs. Parker, a 1954 case discussed by Siegan that both Midkiff and Kelo cite as precedent. The Court permitted a department store to be taken by eminent domain and redeveloped by a new private owner, as part of a larger government-sponsored project of “slum clearance,” stating:

[W]hen the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation. . . .

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.9

This sweeping assertion helps explain the confident militancy with which legislative and executive officials intrude everywhere into our private lives today. It is apparent, however, that the courts have not fully abdicated. Some issues do not square with its announced policy of humility. The same Justice William Douglas who found no authority to uphold the public use limitation in Berman later declared a right of privacy, which still today justifies the Court standing between religionist majorities and a woman’s right to an abortion. The Court also largely ignores the supposed wisdom of the legislative and executive branches when they seek to stifle the press. And, at times, the Court closely scrutinizes allegations of governmental misconduct, for instance, with respect to procedural guarantees in criminal trials.

That dichotomy is the subject of Economic Liberties. As an observer of the modern court, Siegan asks by what legal steps the “longstanding policy” arose, and whether it has any legitimate support. His perspective is not revolutionary; he merely accepts earnestly the premise that the protection of private property is among the basic objectives of the Constitution. Siegan’s conclusion is that “there is no constitutional basis for the federal courts discriminating against economic liberties” and that the Supreme Court’s present treatment of economic liberties has utterly destroyed the separation of powers mandated by the Constitution. . . .

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1 Kelo vs. New London, 545 U.S. ___ (2005). Thomas, J., dissenting (Slip Opinion, p. 14).

2 The most comprehensive listing is available at, a website maintained by the Institute for Justice. IJ attorneys Dana Berliner and Scott Bullock represented the plaintiffs in Kelo before the Supreme Court, and continue to lead the movement for reform.

3 Kelo, 545 U.S. ___ (Slip Opinion, p. 1).

4 Lingle vs. Chevron, 544 U.S. 528, 543 (2005).

5 Kelo, 545 U.S. ___, Thomas J., dissenting (Slip Opinion, p. 15).

6 The 1980 edition is published by University of Chicago Press. An “expanded second edition” published in 2005 by Transaction Publishers is now available, but it cannot be recommended above the original edition. The new book, although possessing the same title, contains substantially different content and amplifies flaws of the original edition discussed here. Attorneys, historians, or those with more than a layman’s interest in the subject of economic liberties, may find it of interest to compare both.

7 Hawaii vs. Midkiff, 467 U.S. 229, 240 (1981).

8 Ibid. (quoting TVA vs. Welch, 327 U.S. 546, 552 [1946]).

9 Berman vs. Parker, 348 U.S. 26, 32–33 (1954).

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