The Original Understanding of 'Property' in the Constitution

Abstract

Contemporary Supreme Court jurisprudence treats "property" as far less deserving of judicial protection than "life" or "liberty." The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers' generation believed that "property" and "liberty" were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of "property" embraced the legal rights to which everyone was entitled, such as the right to governance under "the rule of law." Property was not immune from regulation, but that regulation had to be for the purpose of promoting "the general Welfare," not the interests of specific groups or people. It is time for the Supreme Court to revisit Anglo-American legal history and to reexamine its precedents in light of what that history teaches. 1. See U.S. CONST. amend. V ("No person shall be. .. deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."); id. amend. XIV, § 1 ("No State shall. .. deprive any person of life, liberty, or property, without due process of law.. . ."). 2. The Fifth Amendment directly limits only the power of the federal government, see Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), but the Fourteenth Amendment limits the power of the states. Over time the Supreme Court has applied most provisions of the Bill of Rights against state and local governments by incorporating them through the Fourteenth Amendment Due Process Clause. See McDonald v. Chicago, 561 U.S. 742 (2010). 3. See FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 10 (1985) (hereinafter MCDONALD, NOVUS ORDO SECLORUM) ("At the time of independence a great many Americans believed. .. that liberty or freedom required no definition."); JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 37 (1990) (the meaning of property at that time was "unproblematic"). That does not mean the definitions were simple. See MCDONALD, NOVUS ORDO SECLORUM, supra, at 13 ("The concepts of liberty and private property carried with them a large body of assumptions, customs, attitudes, regulations both tacit and explicit, and rules of behavior. Thus neither liberty nor property was a right, singular; each was a complex and subtle combination of many rights, powers, and duties, distributed among individuals, society, and the state. Together, these constituted the historical 'rights of Englishmen' of which eighteenth century Americans were so proud-at least until 1776, when they abandoned their right to call themselves Englishmen."). 4. The courts' interpretive role should never be underestimated. See William Van Alstyne, Cracks in "The New ...

Reconsidering the Dual Nature of Property Rights: Personal Property and Capital in the Law and Economics of Property Rights

“…The literature provides exhaustive accounts and discussions of the reasons that motivated this conceptual shift in the interpretation of property rights (Alexander, 1997(Alexander, & 1998Baron, 2013;Berle and Means, 1991;Di Robilant, 2013;Fried, 2009;Horwitz, 1973Horwitz, & 1992Larkin, 2016;Mossoff, 2003;Siegel, 1986Siegel, & 1991Singer, 1982Singer, , 1988b(Mossoff, 2003); (Singer, 1982); (Singer, 1988b); Smith, 2009bSmith, & 2013aWiecek, 1998: chapter 4). Among the various factors, one was anonymously regarded as playing a key role: the historical transition from the agrarian and domestic economy of the early 19 th century where properties were mainly used for the satisfaction and fulfilment of the owner's personal needs and necessities in accordance with its requirements and social status, to the capitalistic economic system characterising the American society in the late nineteenth century, where properties were mainly used for commercial and business purposes in order to provide valuable services to customers by means of economic (or contractual) transactions.…”