Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis

Abstract

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine. Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and (2) may have substantially less marginal social utility than most jurists presume. The theoretical evidence comes from positive politicaleconomic theories of property rights, according to which political institutions can be expected to substantially protect property ...