A Commentary on Professor Fisher’s Thesis: Ideology, Religion, Private Property and the Supreme Court 1987-88

• Main Author: HUNTER, Howard
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 1990
• Subjects: Law; Religion Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/2131; https://ink.library.smu.edu.sg/context/sol_research/article/4083/viewcontent/CommentaryFisherThesis_39EmoryLJ135.pdf
• Institution: Singapore Management University

The most important lessons to be learned from Professor Fisher's paper are that the ideologies central to American law have roots in religious thought and that the influence of ideologies can be found throughout American law, perhaps most especially in judicial decisions. To these lessons we can add a third: the ideologies embodied in judicial decisions concerning private property in the period from the American Revolution to the Civil War are still with us. Three recent decisions of the United States Supreme Court' illustrate the continuing importance of the constitutional and ideological protection of private property, while offering an interesting interplay of the theories of "public easement" and "off-setting gains" as defined by Professor Fisher.4 There are differences, to be sure, between the property and takings issues considered recently by the Supreme Court and those contemplated in the cases discussed by Fisher - the contemporary cases lack the drama of slavery hovering in the background. Hardly any property case could have been decided prior to the Civil War without a concern for the impact of the decision on that most notorious of American institutions. More striking than the differences, however, are the similarities in tone, argument, and' substance.