Constitutional Property and Progressive Property’s Compatibility: A Reappraisal

Abstract

Progressive property theory is driven by a desire to improve the law, and legal outcomes, for those on the margins of society. At the same time, it largely assumes the compatibility of constitutional property rights with its aims. However, constitutional property doctrine is often ambiguous on the core question of what distribution of collective burdens is susceptible to invalidation. Such ambiguity in turn can support political over-inflation of the strength of constitutional protection for property rights. Given the resulting chilling effect that constitutional property rights can have on measures that interfere with property rights, the Article argues that progressive property should be more sceptical of property rights guarantees that are interpreted judicially as having anti-redistributive effects. At the very least, it should more closely analyse and account for the political effects of such rights.