I met Professor Bernard Siegan during my first year of law school. He had been rejected for an appointment to the 9th Circuit Court of Appeals the year before and his spirits were dampened. The toll of political fights often takes place off camera, but it can be tremendous. Judge Bork’s memory still looms large in the national debate, but people often forget how the godfather of property rights, Bernie Siegan, was “Borked” by the same group of Senators.
Professor Siegan’s small office was packed with books about constitutional law and economic theory, a field of study in which he had been a giant contributor. As a lowly 1L, I was awed to be sitting with the author of The Supreme Court’s Constitution, Other People’s Property, Economic Liberties and the Constitution, and Property and Freedom.
I told him that his writings had a tremendous impact on me and that I couldn’t wait to take his con law class the next year. Taking a long shot, I asked him if he needed a research assistant. He looked surprised and told me that he was a “falling star” and recommended attaching myself to another professor. But I pressed on and he reluctantly began a tutelage that has had an enormous impact on my life.
Professor Siegan’s groundbreaking work focused on the negative impact of zoning regulations. In Land Use Without Zoning, he explained how Houston thrived without restrictive zoning regulations. To him, government planned “solutions” often resulted in higher housing costs, with the poor and middle classes usually taking the hardest hits.
Professor Siegan often pointed out that it was little wonder that the Constitution contains so many direct and indirect references to the importance of protecting property. Article I, Sections 9 & 10, provide that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contract. Respect for the supremacy of property can also be found in constitutional provisions prohibiting the quartering of soldiers in the 3rd amendment and the 4th Amendment prohibition of unreasonable searches and seizures. Of course, the 5th and 14th Amendments both explicitly provide that no person may be deprived of life, liberty or property without due process of law.
The Framers’"strongly influenced by the writings of John Locke, William Blackstone, and Edward Coke’"had created a system designed to maximize human freedom by protecting the means to acquire and maintain property. Professor Siegan wrote extensively about this, highlighting the important role that property rights played in human liberty. He understood that attacks on property rights were a threat to political liberty.
Professor Siegan’s message wasn’t simply an academic exercise. His books Drafting a Constitution for a Nation or Republic Emerging Into Freedom and Adopting a Constitution to Protect Freedom and Provide Abundance were blueprints for countries emerging from communism. Copies of his books were available in Polish, Ukrainian, Bulgarian, Spanish and many other languages. He was determined to see young nations recognize that economic growth was dependent on respecting property rights and establishing the rule of law.
A few months ago, I was in San Diego and met Professor Siegan for lunch. His body was tired, but his mind was still very sharp. We talked about his days at the University of Chicago and his work at the University of San Diego and the impact it would have on future students, lawyers, and judges. He wanted to talk about China and how impressed he was with their GDP and that they were moving to secure more property rights. He was trying to put together a conference to explore economic and property rights developments in China. If anyone could speed along China’s road to respecting economic and property rights, it would be him. Unfortunately, he ran out time.
Professor Siegan, always the gentlemen, insisted on paying for that lunch, pointing out that he was the professor and I was the assistant. Noting that conversation we had at our first meeting over 15 years earlier, I pointed out that his legal star had never fallen. To the contrary, his work serves as a guiding star for any serious scholar seeking to find the original intent of this nation’s founders.
Mark Brnovich is the former director of the Goldwater Institute Center for Constitutional Studies.