Property Rights

• Author: Frank I. Michelman
• Pages: 2051-2055

Page 2051

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,

Page 2052

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...