Property and Freedom: Constitution, the Courts and Land-Use Regulation

Over the past few years, a series of Supreme Court decisions has strengthened the legal protection of private property in the United States by limiting the power of state and local governments to impose zoning ordinances and land-use regulations on property owners. Bernard H. Siegan explores this new direction of the Supreme Court in Property and Freedom: The Constitution, the Courts, and Land-Use Regulation, arguing that this recent jurisprudence implements the objectives of the framers of the original Constitution, the Bill of Rights, and the Fourteenth Amendment.

Discussing several key land-use cases, Siegan describes the emergence of a new standard of review for land-use regulations―a standard under which a regulation will be held to be constitutional only when it substantially advances state interests and does not deny an owner economically viable use of his land. This new standard is less demanding than the strict scrutiny test applied to laws limiting freedom of speech or of the press, but considerably more demanding than the standard previously applied in these cases. In elevating the protection of property rights, Siegan contends, the Supreme Court has implemented a fundamental rule of fairness: governments should not force individual property owners to bear the costs of regulations which are supposed to benefit the public.

Siegan believes that the new standard of review for land-use regulations accords with the widely held view that the protection of property rights is essential to the viability of the state and the well-being of the people. He cites studies showing that economic regulations seriously limit a nation's productivity and standard of living, and that zoning and no-growth measures reduce housing opportunities and raise the price of housing. Understandably, Siegan notes, people with low and moderate incomes tend to vote against zoning regulations in local elections.

Bernard H. Siegan (1924-2006) was professor of law at the University of San Diego for over thirty years and before that practiced law in Chicago. In addition he served on many American governmental committees including the National Commission on the Bicentennial of the Constitution, the Commission on Housing (under Ronald Reagan), and the Federal Trade Commission.  He is the author of numerous books, including Regulation, Economics and the Law, Economic Liberties and the Constitution, and The Supreme Court’s Constitution.