David Schultz


This Article proposes an analysis of Scalia's views on property rights and shows how the Justice has been important to, if not the leader in, the current rethinking of takings and land use jurisprudence." Also, this Article will engage in a more comprehensive reevaluation of the jurisprudence of the Carolene Products Era that is transpiring both off and on the Court. While previous works have examined Rehnquist's and his Court's views on property, as well as Scalia's views on expressive freedoms criminal due process, and church/state issues, there is no comprehensive discussion addressing Scalia's views on property rights. To accomplish this, the Article will first offer an examination of Scalia's views on property rights in light of his scholarly writings and Court decisions. Next, the Article will contrast Scalia's property rights decisions with his voting record on selected civil rights/liberties issues. The purpose of this contrast is to show how Dolan represents an effort on the part of Scalia and the Rehnquist Court to rethink the relative relationship between property and civil rights and, in the process, articulate what appears to be a post-Carolene Products jurisprudence that reconceptualizes the property rights/civil rights dichotomy. The Article will conclude by arguing that such a rethinking, while laudable, is mistaken in the form being undertaken by Scalia and the current Court because it subordinates individual political rights to market forces in a way that fails to develop links between property and civil rights that transcend class distinctions.