The Concept of Property in Private and Constitutional Law: The Ideology of the Scientific Turn in Legal Analysis

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Most observers who have commented upon the development of this new mode of analysis have seen a radical discontinuity between its teleological approach and the analysis traditionally applied by courts to cases under the takings and due process clauses. In this Article I shall argue that, on the contrary, the new mode of analysis may be viewed as a fundamentally reactionary response to the challenge presented to liberal ideology by the rise of the social welfare state. The methodological differences between the old and new analyses are real, but exist at only the most superficial level. At a deeper level methodological continuity may be discerned. More importantly, at the ideological level the new analysis represents no break at all with the traditional mode. The apparent rise of the new mode of analysis results from the need of liberal legal theory to revise the traditional conceptual apparatus of the property clauses of the Constitution, derived from traditional private-law notions, in order to continue to serve the ideological premises of legal doctrines aimed at protecting private property interests