Although their arguments have been largely forgotten, several state and federal judges of the 1920s wielded natural rights principles to strike down early zoning ordinances. One of these was none other than the district court judge in the Euclid case, David Courtney Westenhaver:
"The argument supporting this [zoning] ordinance proceeds, it seems to me, both on a mistaken view of what is property and of what is police power. Property, generally speaking, defendant's counsel concede, is protected against a taking without compensation, by the guaranties of the Ohio and United States Constitutions. But their view seems to be that so long as the owner remains clothed with the legal title thereto and is not ousted from the physical possession thereof, his property is not taken, no matter to what extent his right to use it is invaded or destroyed or its present or prospective value is depreciated. This is an erroneous view. The right to property, as used in the Constitution, has no such limited meaning. As has often been said is substance by the Supreme Court: 'There can be no conception of property aside from its control and use, and upon its use depends its value.'" -Ambler Realty Co. v. Village of Euclid, Ohio, 297 F. 307 D.C.Ohio (1924).The logic is straightforward and simple. If, as Westenhaver stated, property "includes the right to acquire, use, and dispose of it," then the removal of one of these valuable rights – for instance, the right to use land for industry – was a taking requiring compensation. To hold otherwise would be analogous to concluding that a thief does not commit robbery so long as he leaves a few dollars in his victim's wallet. And after all, states had long ago abolished the archaic fee tail, which removed an an owner's right to sell his property, for public policy reasons. Was the right to freely use property any less important than the right to sell it?
Unlike Justice Sutherland, the author of the Euclid opinion, Westenhaver was thoroughly unconvinced by the arguments of the Progressive planners that the zoning law was an enlightened regulation justifiable in terms of health, safety and the public welfare:
"The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life."Chief Justice Phillips of the Texas Supreme Court reached the same conclusion in 1921, with regard to a zoning ordinance which prohibited commercial uses in a district except with the approval of a three quarters majority vote of area residents:
Baseless prejudice against commercial activity, Phillips held, or against those of lesser means, was not a sufficient justification for a taking of property rights without compensation, any more than baseless racial prejudice was sufficient justification for the race-based zoning laws struck down in 1917 by the Supreme Court in Buchanan v. Warley."This feature [majority approval] of the ordinance, in our opinion, reveals its true purpose. It reveals with reasonable clearness that its object is not to protect the public health, safety or welfare from any threatening injury from a store, but to satisfy a sentiment against the mere presence of a store in a residence part of the City. ... But it is not the law of this land that a man may be deprived of the lawful use of his property because his tastes are not in accord with those of his neighbors. The law is that he may use it as he chooses, regardless of their tastes, if in its use he does not harm them." -Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
This entire line of reasoning was invalidated by Euclid, which held that, in essence, the right to use one's property for lawful purposes was not a property interest within the meaning of the Fifth Amendment at all, and which permitted the regulatory regime we take for granted today. The Supreme Court's takings jurisprudence since that time, constrained by this holding, has come to reflect an outlook on property rights that one legal scholar has called "schizophrenic" (p. 1650). A few libertarian-minded scholars, notably Richard Epstein, have been attempting to revive a version of this older jurisprudence, but there's no substitute for examining the original arguments that were pitted against each other in the early 1920s, and for making one's own judgments. Where do you, the reader, come down in this debate?