Property Rights in Times of Crisis

May 20, 2020 | The Practical Real Estate Lawyer


Spurred by the headlines that have been swirling around all of us, I decided to re-read cases about the role of the courts when government curtails liberty or property rights under its police or emergency powers. We’ve now seen lawsuits claiming that an order to shut down businesses is a due process violation and is a regulatory taking requiring compensation, and we’re hearing about official quarantines, citations for people violating stay-home orders, and the like.

Property Rights in Times of Crisis - By Robert H. Thomas - hosted by ALI CLE
Property Rights in Times of Crisis – By Robert H. Thomas – hosted by ALI CLE

We started with the vaccination cases. These got us to thinking that if the government can for the most part force people who don’t want vaccinations to get vaccinations (violating their bodily integrity), then how will a court treat seemingly less-invasive intrusions into liberty or property in the name of public health?

In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court distinguished “an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” with what it labeled “[r]eal liberty”:

Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; … It is then liberty regulated by law.

Id. at 26, 27 (footnote omitted). The Court based its reasoning on public “self-defense,” noting that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27.

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