Flemming V. Nestor - Critique

Critique

This case goes to the heart of an interesting question: What is property? The Takings Clause of the Fifth Amendment states that "nor shall private property be taken for public use without just compensation." In this case, the court had to determine whether a person's interest in his Social Security benefits is "property" that is protected by the Fifth Amendment. As noted above, the court found that it was not.

The case has been criticized on many grounds. In dissent, Justice Black argued that the Court's holding was motivated by anti-communist bias. Charles A. Reich argued that Social Security benefits should be considered to be "property" for the purposes of the Fifth Amendment. Social Security, he argued, is a compulsory substitute for private property, is heavily relied on, and is important to beneficiaries. The beneficiary’s right to Social Security, he argued, should not be subject to public policy considerations (especially not something resembling a loyalty oath, as was the case in Flemming). According to this argument, allowing government benefits to be revoked in this way too extensively threatens the system of private property. Protecting private property is an important goal, he argued; the Framers thought that protecting private property would be one way of protecting individual liberty.