Affirmative Constitutional Commitments: The State’s Obligations to Property Owners

Christopher Serkin

The United States Constitution enshrines primarily negative liberties. It conveys rights to be free from government interference, but in its core provisions does little or nothing to create affirmative duties for the government. At least that is the conventional view, reflected in several centuries of law and scholarship. When it comes to property, this conventional view may be wrong. In my contribution to this year’s excellent Brigham-Kanner Property Rights Conference honoring James Krier, I argue that the Constitution requires the government—at least sometimes, in particular contexts—to take affirmative steps to protect or promote the “just” allocation of resources in the world. This is unconventional as a matter of constitutional law, but is surprisingly consistent with important strands of contemporary property theory. In particular, I argue here that emerging conceptions of property as a locus for obligations as well as rights can function as a two-way street. While the nature of property means that the State can ask a lot of property owners, the dynamic nature of property rights means that those obligations sometimes reverse and owners can make demands of the State.

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