From Social Recognition of Property to Political Recognition by the State

Abstract

Gerhart’s book makes real contributions and nicely incorporates doctrinal payoffs. It sells short, however, the distributional concerns embedded in core property doctrines and so does not entirely account for the extent to which positive law can and does diverge from social recognition. It therefore admits constitutional protection for property that is too parsimonious, and that also does not embrace the full complexity of the relationship between property and the State. This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements.