PROPERTY RIGHTS

In the discourse of American constitutionalism, the idea of property has been both primal and protean.

First, there is the text. The due process of law clauses of both the Fifth Amendment and fourteenth amendment, rank property by name with life and liberty as a chief human interest to be secured against arbitrary and excessive interference from government. The Fifth Amendment's eminent domain, or "taking," clause even adds a special restriction against uncompensated taking of property for public benefit. Constitutional law perceives various high aims in these general protections for property. Courts dealing with claims of taking without compensation find in property an antiredistributive principle, opposed to imposition on a select few of the costs and burdens of government operations. When the claim is one of deprivation without procedural due process, modern doctrine treats property as primarily a legalistic (or bureaucratic) principle, opposed to subversion of legally warranted expectations by faithless or irregular administration of standing law. Of course, expectations build on constancy in the law itself, as well as on reliable administration. The doctrine of substantive due process arose, in part, out of concern for protecting legally vested rights against retrospective disturbance by changes in law. In a more dramatic form of substantive due process, property has figured as a libertarian principle of independence from state regulation: the right of an owner, as Justice john paul stevens recently wrote in moore v. city of east cleveland (1977), "to use her own property as she sees fit."

Second, proprietary norms and notions have inspired and organized constitutional-legal doctrine apparently far removed from the immediate scope of the property-specific clauses. Both the third amendment and fourth amendment obviously tap special values of domestic sanctuary—refuge and privacy—from one prototypical image of property, the home or house. In griswold v. connecticut (1965) the Supreme Court marshaled these provisions with others in the bill of rights to construct a constitutional right of privacy in the conduct of marital intimacies at home. By the time of roe v. wade (1973), the Court had reconceived this as a right to choose for oneself "whether to bear or beget a child." In buckley v. valeo (1976) the Court treated deployments of private wealth in electoral politics as exercises of the freedom of speech and the freedom of assembly and association protected by the first amendment. In perry education assocation v. perry local educators assocation (1983), the Court confirmed an old idea that a government acting as a proprietor (rather than as a lawmaker) is unusually free to restrict freedom of speech. In a series of cases including Reeves, Inc. v. Stake (1980), the Court similarly relieved states acting as owners from normal duties under the commerce clause to refrain from commercial discrimination against out-of-state competitors. In contrast, courts adjudicating under the rubric of substantive due process currently treat economic liberties (aspects of self-direction concerned with acquisition, exchanges, and deployment of property) as categorically less resistant to state regulation than more "fundamental" or "personal" aspects, such as control over family formations.

Third, on a broadly ideological level, legal depictions of property have figured strongly in imaginative conceptions of the American constitutional system. Property held a glorified place in the common lawyer's Whig history imbibed by early Americans from william blackstone. With its naturalistic imagery of clearly demarcated "closes," property offered a paradigm of legally sanctioned authority that was supreme within its limits yet firmly delimited by law. Such an image of legal property apparently helped later generations of Americans to represent and confirm to themselves the workings of check-and-balance institutional schemes—federalism and separation of powers—that depend on jurisdictional boundaries judicially patrolled. More fundamentally, the image has from the beginning helped inspire and sustain a core idea of constitutionalism: a legally limited government based on a secure bounding of the state's domain from those of the market and private life.

Finally, at the level of practical debate over institutions, the question of property's relation to politics has always been foundational for American constitutionalism. In the strongly influential natural rights philosophy traced to john locke, the relation is oppositional. Property—here meaning acquisition of goods by effort and exchange and retention against force and fraud—is considered a native attribute of humankind, not an artificial contingency of state power and political choice. Accordingly, the state's business is to secure natural property against breakdowns of mutual forbearance that only a supreme civil authority can prevent. For Lockeans, then, the relation of property to politics is that of an a priori external limit and a test of legitimacy.

Yet in an older tradition of civic republicanism, to which the Founders were also heir, questions of property entitlement and distribution are inseparable from constitutional design and political ministration. By the traditional republican understanding, property, or wealth, is power in politics. Undue concentration of wealth portends either oligarchy or revolution, and warding off those contingencies is very much the business of republican government. Morevoer, in civic republican thought, "corruption" of political motives by preoccupation with private need or advantage (as opposed to public honor and common good) is a chief internal threat to the stability and success of popular governments. Elements of this traditional view, modernized and coupled with Lockean liberal ideas, plainly appear throughout the federalist (saliently in james madison's famous essay on "faction") and in thomas jefferson's political writings. They appear in the Constitution, as well, and in early American constitutional practice. By such devices as indirect election and large constituencies, the Framers avowedly designed the Constitution to ensure that only men of means and repute would attain national legislative or executive office.

Moreover, it was normal in the early United States for states, which under the Constitution set electoral qualifications even for congressional and presidential elections, to restrict voting rights to persons of independent social status (free adult males) who also held a substantial property endowment or income of a kind not too dependent on governmental machination. In the more egalitarian democratic ethos tracing to the Jacksonian period, reconstruction, and the civil war amendments, wealth discrimination in the field of voting rights has become constitutionally intolerable. Rather, debate has inevitably arisen over the converse claim that a democratic-republican constitution requires assurance to all, at public expense if necessary, of the material prerequisites of political independence and competence.

In summary, the American constitutional rhetoric of property and property rights is a congested manifold of cross-cutting and contested doctrinal and normative evocations. As might be expected of such an overloaded vocabulary, ambiguity and conflict affect not just normative emanations and doctrinal derivations, but the direct reference of the central terms themselves. In constitutional disputation, "property" and "property right" variously signify holdings, entitlements, and institutions. At one moment, "property" (or "property right") may refer to specific holdings of social wealth that various persons currently claim or practically enjoy; at another, to a set of legal or moral rules and principles supposed to define and condition entitlements to possession and enjoyment of parcels of social wealth; and at still another, to institutional regimes of privatization (the "free market").

This variability of reference would little surprise the generations of Anglo-American theorists—the line runs from David Hume and Jeremy Bentham to Wesley N. Hohfeld, morris r. cohen, Felix S. Cohen, Robert L. Hale, and beyond—who have attempted conceptual analyses and critiques of legal "property." Vagaries in constitutional-legal usage of "property" echo the academic discussions, which have themselves obviously been sensitive to partisan political and constitutional debates. In some respects, however, constitutional-legal usage strays from established jurisprudential positions.

It is common ground, at least, that legal "property" is a relation, not a substance. Property does not consist in parcels of wealth or "stuff." Academic sophisticates have long agreed that it also does not consist in any relation between a person and "his" stuff; neither possessory acts, proprietary intentions, nor both together constitute property. Rather, property is a matter of relations among persons: the social relations and practices that accord to bare, empirical, person-to-parcel connections a measure of public recognition, normative legitimacy, and practical reliability. But that is not all property is, either. Also indispensable to property, say the theorists, is the element of entitlement or legal sanction: there is no true "property" in a casual neighborhood practice of allowing me to farm a field and reap the fruit when we all also know that others may stop me at any time without running afoul any law. The question then becomes whether the law that constitutes property entitlements consists strictly of the "positive" human inventions of legislatures and of courts filling gaps in the common law or, rather, is found in some method of reason or traditional understanding that composes a prelegislative "higher" or "Natural" Law. On this question, jurisprudence remains deeply divided.

It is easy to find constitutional-legal doctrine officially accepting each step of the jurisprudential consensus so far as it goes. Yet constitutional law seems also often driven to resist the abstract logic of the consensus. According to the theorists, a legal regime that secures the exclusive possession of landowners against unauthorized entry certainly constitutes a property entitlement, but so, by the same reasoning, does a legal regime that permits (and protects against interference) a particular mode of using a parcel—for example, an owner's strip mining of land. Constitutional law, by contrast, differentiates sharply between legal restrictions on use that leave possession undisturbed and laws subjecting owners to "permanent physical occupations" of land. As the Supreme Court recently confirmed in Keystone Bituminous Coal Association v. DeBenedictis (1987) and Nollan v. California Coastal Commission (1987), new use restrictions, however severe, rarely amount to constitutionally challengeable takings or deprivations of property, but state-sponsored dispossession, however trivial, almost always does. Or consider a law plainly stating that a sheriff may seize goods from a person who bought them on credit whenever the creditor tells the sheriff that the loan is in default. In the sophisticated view, such a law simply defines the extent of the installment buyer's property right and so cannot itself be a constitutionally questionable deprivation of property. Constitutional law on procedural due process officially adopted that view in board of regents v. roth (1972), a case of peremptory unexplained dismissal from a government job expressly held at the supervisor's discretion. Yet at about the same time, in Fuentes v. Shevin (1972), the Court found an unconstitutional deprivation of property without procedural due process in the law authorizing unceremonious seizure of goods from an installment buyer's possession. Unlike academic jurisprudence, constitutional law has to mediate practically among demands for proprietary security, sound policy, and popular acceptance, along with the demand for consistent theory. Operating within this field of forces, courts evidently find that governmentally engineered trespasses on extant private possessions are uniquely and unacceptably insulting to property's ideological function as a paradigm of limited government, that is, as private domains secured against governmental intrusion.

A like irresolution appears in constitutional law's response to the theorists' requirement of legal entitlement as essential to property. The Court both expressly avows this requirement and rejects its full implications. Faced in United States v. Willow River Power Co. (1945) with a hydroelectric company's claim that the government took its property by damming a river and thereby flooding the tail end of its generating plant, Justice robert h. jackson memorably declared that judicial delineation of property rights turns not on any intelligible essence of "property," but on discovery and construal of prior and contemporaneous law: "We cannot start the process of decision by calling [every existing economic interest or advantage] a 'property right' … Such economic uses are property rights only when they are legally protected interests." In short, discoverable legal entitlement is required to qualify an "economic interest" as the "property" mentioned by the Fifth and Fourteenth Amendments. The Court has further perceived that those constitutional mentionings cannot themselves be read (without apparent circularity) to confer the legal status of property on any disputed "interest or advantage." Rather, according to Regents v. Roth, the entitlement must be grounded in "an independent source such as state law." The Court has even hitched such a "positivist" approach to the theory of federalism, declaring in pruneyard shopping center v. robins (1980) that "the United States, as opposed to the several states [is not] possessed of … authority … to define 'property' in the first instance."

Repeatedly, however, the Court has defied this logic and found that the Constitution's property clauses directly demand protection for interests plainly not treated as property by standing subconstitutional law. dred scott v. sandford (1857) is the earliest instance. The missouri compromise of 1820 established the northern portion of the Louisiana Territory as "free soil." According to the law of many jurisdictions, a slave taken by a master onto free soil was thereby emancipated. Given that as the standing legal rule, a master's legally grounded entitlement in a slave simply would not extend to retention of title after the master had taken the slave into free territory. At a time when this plainly appeared to be the applicable, governing rule, Scott's "owner" took him from Missouri to north Louisiana Territory. The Supreme Court held that to grant Scott his freedom on that basis would be to deprive Sandford of constitutionally protected property without due process of law.

Although a deservedly infamous decision, Dred Scott is not aberrational in its refusal to allow subconstitutional congressional and state lawmaking to dictate the limits of constitutionally protected property. In Pennsylvania Coal Company v. Mahon (1922) the Court granted arguendo the public safety justifications for a law forbidding coalmine owners to remove coal in such a way as to cause the collapse of surface structures, but still found that the law unconstitutionally took the property of mining firms on which it had confiscatory retrospective impact. Justice oliver wendell holmes, jr. wrote that, despite the long-established rule subordinating all property to public-safety regulation, "if regulation goes too far it will be recognized as a taking." The rule's "implied limitation" of property rights "must have its limits, or the contract and due process clauses are gone." In Kaiser Aetna v. United States (1979) the Court dealt similarly with the standing rule subordinating all shoreline property holdings to public rights of access to navigable waters. It refused to apply the rule strictly when doing so would have subjected the complaining owners not only to unwelcome "physical invasions," but to loss of their "distinct investment backed expectations" of privacy. Most recently, the Court's opinion in Nollan v. California Coastal Commission (1987) strongly implied that a state legal regime expressly subjecting all shoreline land titles to public rights of pedestrian passage would violate a baseline normative standard for property institutions contained in the Fourteenth Amendment.

The Court has thus refused to read the Constitution's property clauses as completely delegating to legislative politics the definition of legal regimes of property rights. It has refused to reduce the judiciary to the ancillary role of protecting persons against retroactive alteration and capricious administration of these subconstitutional legislative regimes. It has done so when the alternative struck it as betrayal of substantive constitutional values linked to property, notably, private sanctuary and limited government. Such cases lie along that contested boundary of judicial activism and judicial restraint where the demand for constitutional vindication confronts the demand for contemporary democratic accountability.

In such cases, the Court is not, however, necessarily rejecting jurisprudential insistence on legal entitlement as a prerequisite to property. It may rather be denying that property-constitutive law can be found only in the "positive" lawmaking acts of legislatures and common-law adjudicators. Not surprisingly (considering the conflicting normative pressures for both a rule of law and government of the people by the people), this choice between an exclusively "positive" and a "natural" provenance for property-constitutive law is just where the jurisprudential consensus on legal property falls apart. We can see the Court in these cases as allying the Framers with those theorists who appeal to "natural" criteria of reason or tradition for a higher-law conception of property entitlement. The Court, in effect, conceives the Framers to have been referring to such criteria when they prescribed constitutional protection for "property."

Thereby, the Court also, and to a like extent, apparently aligns itself (or the Framers) with the Lockean liberal (as opposed to civic republican) antecedents of American constitutionalism. Rather than treat the design and adjustment of property regimes as a central legitimate concern of republican government, the Court to this extent treats property rights as prior and external to state and politics. But the civic heritage may not yet be entirely expunged from American constitutional doctrine or disputation. This heritage may help explain the Court's unshakable tolerance for legislative schemes of property-use regulation that plainly and grossly exceed the bounds of any plausibly Lockean notion of police power. More pointedly, it may help explain the settled acceptance of statutory income transfer schemes that appear to "take property from A and give it to B" in defiance of an oftcited first principle of Lockean higher law. Commentators have argued vigorously, and vainly, that such schemes are both constitutionally obligatory and constitutionally forbidden. The modern Court's refusal of commitment to either view may be its mediation between the civic and the libertarian underpinnings of American constitutionalism.

Frank I. Michelman
(1992)

(see also: Economic Due Process; Economic Equal Protection; Economy; Property Rights and the Human Body.)

Bibliography

Ackerman, Bruce A. 1975 Private Property and the Constitution. Cambridge, Mass.: Harvard University Press.

Cohen, Felix S. 1954 Dialogue on Private Property. Rutgers Law Review 9:357–387.

Epstein, David F. 1984 The Political Theory of the Federalist. Chicago: University of Chicago Press.

Epstein, Richard 1985 Takings: Private Property and the Law of Eminent Domain. Cambridge, Mass.: Harvard University Press.

Kennedy, Duncan 1980 Toward a Historical Understanding of Classical Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940. Research in Law & Society 3:3–24.

Michelman, Frank I. 1987 Possession vs. Distribution in the Constitutional Idea of Property. Iowa Law Review 72:1319–1350.

Nedelsky, Jennifer 1989 Private Property and the Limits of American Constitutionalism: A View from the Formation. Chicago: University of Chicago Press.

Singer, Joseph William 1982 The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld. Wisconsin Law Review 1982:975–1059.

Symposium 1988 The Jurisprudence of Takings. Columbia Law Review 88:1581–1794.

Treanor, William 1985 The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment. Yale Law Journal 94:694–716.