So we all like the Norwood decision (1 2) because the result is more respect for private property rights. But what about the Court’s reasoning? Was it really pro-property? Yes, it was. Not Rothbardian or Hoppean, mind you, but as good as you’re likely to see from a government court. Here’s part of what they said:
Believed to be derived fundamentally from a higher authority and natural law, property rights were so sacred [historically] that they could not be entrusted lightly to “the uncertain virtue of those who govern.” As such, property rights were believed to supersede constitutional principles. . . . “To be protected and secure in the possession of [one's] property is a right inalienable, a right which a written constitution may recognize or declare, but which existed independently of and before such recognition, and which no government can destroy.
The right of private property is an original and fundamental right, existing anterior to the formation of the government itself; the civil rights, privileges and immunities authorized by law, are derivative â€“ mere incidents to the political institutions of the country, conferred with a view to the public welfare, and therefore trusts of civil power, to be exercised for the public benefit. . . . Government is the necessary burden imposed on man as the only means of securing the protection of his rights. And this protection â€“ the primary and only legitimate purpose of civil government, is accomplished by protecting man in his rights of personal security, personal liberty, and private property.
I disagree regarding government as “necessary,” of course, but that the Court refers to it as a “burden” is amazing. Among others, the decision cites such libertarians as Richard Epstein and Bernard Siegan.
I still think the trend in the courts and the other branches of government will continue to be toward ever-more government (and especially federal) power, but there’s nothing wrong with using the state’s courts against it if you can. While I have serious differences with the Institute for Justice‘s libertarian centralism and — much worse — support for school vouchers (1 2 3), they have done heroic work here. This decision may help not only in Ohio, but also everywhere, because attorneys will have something more to cite to in support of private property rights.
It’s interesting to note, by the way, that although democracy and property rights are generally antagonistic, the Ohio Supreme Court justices are elected. Might the outcome have been different if, like the US Supreme Court, they answered to no one?