Constitutional Property’s Chilling Effect: Assessing its Progressive Credentials

This paper contends that judges are generally disinclined for institutional reasons to clearly articulate reasons for decisions on the core distributive dilemmas that are inevitably raised by constitutional property rights. This leads to doctrinal ambiguity, particularly in respect of: a) what distribution of collective burdens is susceptible to invalidation pursuant to such guarantees; b) when compensation might be required to legitimise restrictions.

Such ambiguity leads to regulatory inertia and supports political cultures that over-inflate the strength of constitutional protection for property rights. Given the chilling effect that constitutional property rights have on legislative changes that interfere with property rights, the paper argues for a more sceptical assessment of the value of constitutional property rights as an alternative to the dominant scholarly approach of reinterpreting constitutional property doctrine in a more progressive direction.