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In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle's book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle "provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system." Radford's review is a generally enthusiastic one. He sees Coyle's book as providing a much-needed corrective to "the existing pro-regulatory bias in the [scholarly] literature." He applauds Coyle, as well, for enriching our understanding of the competing preference systems that lead to different views about the legitimacy of land use regulation.

Underlying Radford's review is the idea that property rights deserve greater constitutional protection than they have received in the almost sixty years since the Supreme Court accepted the fundamental legitimacy of the regulatory state. Radford's position in this regard is not novel, but reflects broader trends in the courts and in the academy. In particular, Professor Richard Epstein of the University of Chicago has argued that the Fifth Amendment's Takings Clause should be interpreted to bar government actions with redistributive consequences-to bar, in other words, the modern regulatory state. At the same time, in a series of recent cases involving land use and the Takings Clause, the Supreme Court has expanded the scope of the Takings Clause, although its holdings have been narrower in scope than Epstein's view would warrant.

In this response, the author uses Radford's review to talk about property rights and the Constitution. First, he reviews Radford's interpretation and criticism of Coyle's theory. Then the author discusses Radford's Culture X theory in the context of Lucas v. South Carolina Coastal Council. Finally, he discusses the constitutional implications of Radford's analysis.

Publication Citation

22 Fordham Urb. L.J. 453-459 (1995)