Volume 35

Balancing Private and Public Interests in Historic Preservation: It May Be Constitutional, But Is It Right?

by Camryn McGinnis

Historic preservation, as we know it, began in the eighteenth century as a private movement. Today, historic preservation has transformed into a “publicly supported movement” that encourages the protection and preservation of resources that are of historic significance. These include buildings, landscapes, objects, and other resources that have significance and integrity. To be considered significant, a resource must have one of the following qualities: relation to American history, significant architecture, archeology, engineering, or cultural impact. In short, historic preservation tells important stories of the past. It tells stories of previous events, eras, and people; protects the history of diverse communities; and provides a way to connect the past to the present.

Some claim historic preservation is ruining cities. Others argue it is a great benefit to society. This juxtaposition presents the fundamental question of whether the field of historic preservation properly balances the rights of private property owners and the public’s rights to preserve historic properties. Is it ethical to take away certain property owners’ rights regarding their historically designated property for the benefit of the public? While preservation may be constitutional, is it right?

This Note will argue that historic preservation does favor the public’s interest. While this is the ethically right choice because it benefits the general welfare, it is not equitable. Some homeowners are still disadvantaged as a result. However, there are ways in which the legal profession can help improve the practice of historic preservation law to strike a better balance between public and private interests, such as altering lawyer behavior through the Model Rules of Professional Conduct (“Model Rules”).

Part I of this Note will provide the necessary background of historic preservation and ethics. Part II will present historic preservation’s benefits and drawbacks to the general public, while Part III will outline historic preservation’s benefits and drawbacks to private property owners. Finally, Part IV will provide an analysis about ethics in historic preservation and how it affects the legal profession through the Model Rules.


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