How a typo in a 1928 Supreme Court opinion promoted a misunderstanding of 'property rights': reporter

How a typo in a 1928 Supreme Court opinion promoted a misunderstanding of 'property rights': reporter

Back in 1928 — the year in which Republican Herbert Hoover was elected president of the United States and the start of the Great Depression was only a year away — a typo occurred with a written opinion by U.S. Supreme Court Justice Pierce Butler, who was quoted as using the word "property" when he meant to say "properly." But journalist Adam Liptak, in an article published by the New York Times on October 18, stresses that Butler's typo lived on for many years despite a correction.

"The mistake appeared in a slip opinion issued in 1928, soon after the Court announced a decision in a zoning dispute," Liptak explains. "It contained what seemed like a sweeping statement about the constitutional stature of property rights."

Initially, Butler's opinion read, "The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution." But what Butler meant to say was, "The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution."

Liptak notes that although a correction was made, the typo wouldn't go away.

"The wrong version of the statement has appeared in at least 14 court decisions, the most recent of which was issued last year; in at least 11 appellate briefs; in a Supreme Court argument; and in books and articles." Liptak observes.

Butler, who was born in Minnesota in 1866, was a Democrat but was appointed to the U.S. Supreme Court by a Republican, President Warren G. Harding, in 1922 — the year before Harding died of a heart attack in office and Vice President Calvin Coolidge was sworn as president. Butler remained on the High Court until his death in 1939 at the age of 73.

Michael Allen Wolf, a University of Florida law professor, discussed the possible results of the 1928 typo with the Times.

According to Wolf, "It is a real word. It makes sense in context. And it changes the meaning."

Wolf said that it is impossible to know whether or not the typo affected the outcome of any cases.

Wolf told the Times, "We'll never know the answer to that, though if we have judges who favor the private property owner at the expense of the government, I think it could be more than just icing on the cake."

Liptak points out that the typo promoted "one view of property rights."

Wolf told the Times, "It gave an additional argument to the private property rights movement, and they have been very successful almost every time in pushing new theories. And this is a big one, because it supports the almost commonly held notion that you have a right to do on your property what is reasonable. That's not the way it works. The way it works is that the government has the right to place reasonable restrictions on your use of property. I know it's subtle, but that's a big difference."

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