Property rights seem to many people an archaic notion, a relic of a time long gone when the status of an individual would be determined by the property he owned. In such an era, most property belonged to a small portion of the population, and that ownership gave them not only wealth and social standing, but political as well as economic power. It recalls a time when a majority of the people owned little or nothing — women, for example, lost all control over what property they might have when they married — and, thus, government and society were under the control of a small elite. Most of us would prefer the present situation, when property is more widely distributed, when people may enjoy status on the grounds of their accomplishments as well as wealth, when women are no longer hobbled by outmoded notions, and when the right to vote is now universally enjoyed free of any requirement to be a landowner.

But the right to own and enjoy property has always been an important part of the rights of the people. At the Philadelphia convention that drafted the Constitution, John Rutledge of South Carolina reminded the delegates that "property was certainly the principal object of Society." They did not really need much reminding, because the Framers all believed that respect for an individual's property rights lay at the heart of the social contract. Not only did they build institutional safeguards into the Constitution to protect those rights, but the nation soon added important provisions through the Bill of Rights to buttress that protection. Moreover, the Founders did not intend that these protections extend only to land or discernible assets, but to all the rights inherent in property — real or personal, tangible or intangible. They believed that property was "the guardian of every other right," for without the right to own and use and enjoy one's property free from arbitrary governmental interference, there could be no liberty of any sort.

Today property rights are still important to the American people. The right to own what you have created, built, purchased or even been given as a gift — knowing that the government cannot take it from you except under stringent legal procedures — provides the material security that goes hand in hand with less tangible freedoms, such as speech and privacy. People whose economic rights are threatened are just as much at the mercy of a despotic government as are those who find their freedom of expression or their right to vote curtailed. When talking of rights, legal scholars often speak of a "bundle of rights," and by this they mean that all are closely connected. If we no longer believe that property rights underlie all other freedoms, we do believe that freedom is a seamless tapestry, in which every one of the rights in that bundle is important to the preservation of others. This is certainly true of freedom of speech, and it is no less true of property rights.

Ownership in land — the most tangible, and in the early days of the Republic, the most important form of property — had never meant absolute control over that property or an unfettered right to use it in any way the owner wanted. Traditions going back to English common law have always placed restrictions on property. The common law doctrine of nuisance, for example, prevented owners from using their land in a way that interfered unreasonably with the rights of their neighbors. Custom often allowed hunting on private, unenclosed land, or required that an owner allow access to rivers and lakes. Property in the form of businesses also had regulations on them; taverns, ferries and coach lines, for example, were often heavily regulated in both England and the North American colonies. Governments could and did tax individual wealth, and while most people recognize the importance of taxes in providing governmental services, taxation is a taking of property from individuals. Perhaps the most drastic form of interference with private property rights is the concept of eminent domain, by which authorities can compel the transfer of property from a private owner to the government for a public purpose, such as the building of a road or canal.

Given this dichotomy between full protection of property rights and public purpose limits on those rights, the limits on governmental interference with those rights have never been totally clear or without debate. Over time, the meaning of property itself has been transformed. (A parcel of land is still a parcel of land, but how does one look at items like stock options or brand name protection or computer software enhancements?) Thus, the courts are called upon as they always have been throughout American history to interpret the meaning of the different constitutional concepts regarding property. At times, the judiciary has been a champion of property rights, and its decisions have been hailed as necessary to safeguard economic liberty, foster competition, and protect the private enterprise system. Critics of the courts have attacked these same decisions as a barrier to much-needed reforms aimed at protecting the weak, and have criticized them for undermining the emerging welfare state.

While it is true that at times there have been battles between a conservative judiciary intent on fully protecting what the judges saw as untouchable property rights and reformers who believed limits had to be imposed in the form of restrictions or even transfer, to look at those battles would be to miss the true meaning of property rights in American history. Most of those battles involved business property and labor contracts, admittedly important issues, but ones that in many ways are limited to the period of America's industrial transformation, roughly from the 1870s to the 1930s. Those battles have been fought, and the basic issues decided. Rights in business property are important but may be limited when necessary to protect the general welfare; the rights of an individual property owner often must give way to the need of the state to protect those who are weak or disadvantaged.

But the interest in and love of property as a measure of one's connection to society remains strong in the United States. It is not, as so many critics have charged, a simple case of money grubbing and lust after wealth. Owning a home, for example, is seen by many not as a matter of property, but of achieving a dream, a place in society. This attachment to property goes back to the founding of the country, when a large number of settlers came to the New World seeking not gold but land they could work and call their own.

The instant I enter on my own land, the bright ideas of prosperity, of exclusive right, of independence exalt my mind. Precious soil, I say to myself, by what singular custom of law is it that thou wast made to constitute the riches of the freeholder? What should we American farmers be without the distinct possession of that soil? It feeds, it clothes us, from it we draw even a great exuberancy, our best meat, our richest drink, the very honey of our bees comes from this privileged spot. No wonder we should thus cherish its possession, no wonder that so many Europeans who have never been able to say that such portion of land was theirs, cross the Atlantic to realize that happiness. Thus formerly rude soil has been converted by my father into a pleasant farm, and in return it has established all our rights; on it is founded our rank, our freedom, our power as citizens.

The law of the land is so constituted, that every man is secure in the enjoyment of his property, the meanest person is out of reach of oppression from the most powerful, nor can anything be taken from him without his receiving satisfaction for it.

All men have certain natural, essential, and inherent rights; among which are — the enjoying and defending of life and property — and in a word, of seeking and obtaining happiness.

It should be noted that although the Framers of the Constitution wrote in safeguards for property, they did not make officeholding conditional upon the ownership of property. The only qualifications that the Constitution makes regarding membership in the Congress or for the President are age, residence, and citizenship. While many states at the time did have some property qualifications for voting, scholars have found that they kept few from the franchise. In many areas men either owned the small amount of property needed for the vote, or local authorities ignored the rule. Within only a few decades, moreover, property qualifications for voters were swept away in the great tide of democratic reform known as the Jacksonian Era.

The provisions in the Constitution regarding property fall into four general categories. First are restrictions on the new national government's abilities to restrict property rights as they pertain to both individuals and states. Congress could not enact "bills of attainder," in which the property of persons convicted of treason or certain other crimes could not pass to their natural heirs but were forfeit to the government. These provisions aimed at preventing the type of abuse that had been all too common in England, where kings had declared rich lords traitors in order to confiscate their entire estates and those of near relatives, or Parliament had deprived particular groups or individuals of their property through attainder.

In addition, Congress could not give preferential treatment to a port in one state over that in another. While it could impose tariffs on goods coming into the country, it could not tax exports, again ensuring that no one section of the country would gain or lose business because of discriminatory federal policies. These latter provisions grew directly out of the colonial experience, when various colonies had suffered because Parliament in the trade acts had given preference to one colonial port over others, or had taxed the exports particular to some colonies, putting those goods at a disadvantage in the imperial market.

The second group of provisions in the Constitution strengthened the power of the federal government over interstate and foreign commerce, and included a broad taxing authority. While these powers might seem antithetical to property rights, they were actually supportive of them, since the Framers designed them to be a check on the states. During the Articles of Confederation period (1781-1788), the states had often engaged in economic warfare with one another, setting up tariff barriers against the goods of neighboring states, or bribing foreign ship owners to use one port over another. Such practices had wreaked havoc with local businesses, and the provisions of the new Constitution guaranteed that all growers and manufacturers would have equal access to national and foreign markets, and would be free of discriminatory tariffs.

Another important aspect of property protection is the clause granting Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This protection of what today we call "intellectual property" had actually begun a few years earlier. Once the break with England had occurred, American writers and inventors could no longer rely on the patents and copyrights issued earlier by the Crown. Despite the widespread animus against monopoly (a reaction to British imperial policies on tea and other staples), Americans recognized that writers and inventors needed special protection. The Continental Congress lacked the power to grant these shields, and had urged the states to issue them. North Carolina promptly responded with a copyright law, declaring that "the Security of literary Property must greatly tend to encourage Genius." In 1784, South Carolina passed an Act for the Encouragement of Arts and Sciences, the first general patent law in the nation. But under the Confederation, one state could ignore the laws (including patents and copyrights) of another state; the national approach set out in the Constitution provided the protection that owners of intellectual property needed.

A third area placed restrictions on the states. During the 1780s, several state legislatures, responding to popular demand, had passed debtor relief bills or had issued worthless paper money that quickly lost all its value. In addition, as noted above, various state laws taxing imports or exports — either from foreign countries or from other states — had seriously retarded economic recovery after the Revolution. States were expressly forbidden from issuing money and from taxing imports or exports, nor could they enact bills of attainder. Perhaps the strongest protection of private property can be found in the clause prohibiting states from passing any law "impairing the obligation of contract." These contracts could be arrangements between creditor and debtor, landlord and tenant, buyer and seller, or even between the government and private individuals. (One of the most famous of all Supreme Court decisions, the Dartmouth College Case, held that a charter to a private college constituted a contract, and once issued, could not be abridged by the state.) In the early decades of the new republic, the Contract Clause would be one of the most litigated parts of the Constitution, with the Supreme Court strictly enforcing its terms against the states. Yet it generated little discussion at the Philadelphia Convention; the delegates had seen what problems the states had caused, and were determined to ensure they would not have power to do so again.

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. . . . Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. . . . They very rightly infer.that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather "a mere restriction on its use" is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. We have repeatedly held that, as to property reserved by its owner for private use, the right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property."

That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred.

There has been a long-standing debate among historians as to why a strong socialist movement never developed in the United States. After all, the industrial revolution was just as wrenching in the United States as in Western Europe and Great Britain. Workers in American mines and factories labored under conditions just as harsh as their counterparts faced in the Old World, and they labored for low wages that barely allowed many of them to eke out a meager existence. But where workers in England, France, Germany and Italy, came together in powerful trade unions that soon grew into strong political movements on the Left, that never happened in the United States. Although there were numerous socialist groups in the 19th and early 20th centuries, no dominant organization that tied together worker demands and political power ever developed. At their height in the early 20th century, the Socialists only garnered one million votes in the presidential election of 1912, a number never reached again, even during the terrible years of the Great Depression.

The commonly accepted explanation is that in many parts of the world, both workers and property owners saw the economic world as a "zero-sum game," meaning that if one group were to improve its lot in life, it would have to be at the expense of others. For the proletariat to become owners of property themselves, the property would have to be taken away from those who controlled it and given to those who did not. While classical economic thinkers always referred to a person's labor as a form of property, in fact a common laborer had very little control of his work, his laboring conditions, or his pay.

In the United States, however, there had been and, in fact, still is sufficient open land to allow anyone who works hard to become an owner of property. From the beginning, not only farmers, but artisans and even unskilled workers wanted to become property owners. During the first three centuries of the country's existence, both as English colonies and then as an independent nation, a great body of open and free land existed in the West, ready to be settled and worked. Government policy favored this individual ownership, both through the sale of public lands at extremely cheap rates and also by subsidies of land deeded to railroads in the building of the transcontinental railroads. The railroads turned around and sold those lands at a moderate cost, bringing in more settlers to own and work the new territories.

The class and caste systems that seemed to hobble many European societies did not exist in the United States. There was no hereditary aristocracy controlling great estates, nor was there a laboring class limited by custom to their "place" on the bottom rungs of society. Many settlers came to the New World in the 17th and 18th centuries as indentured servants, agreeing to work as farmhands or housemaids for a period of years, after which they would be free. In many instances the "freedom dues" given to a servant upon the completion of an indenture consisted of a parcel of land, farming tools, and seed with which to begin a new life. While not all former indentured servants became great landowners, some did, and many did acquire their own farm and enjoy the privileges that Hector de St. Jean Crevecoeur sang about in 1782. While the nation has changed dramatically from the 1780s until the present, the dream of land ownership has been a constant for all groups in America. Most workers did not want to become a more powerful proletariat supporting a socialist political party; they wanted to become small business owners, independent artisans, employers of others in their own right, members of a burgeoning middle class and, above all, homeowners and landowners, like the rich.

In no other country in the world is the love of property keener or more alert than in the United States, and nowhere else does the majority display less inclination toward doctrines which in any way threaten the way property is owned.

At the beginning of the 21st century we confront a bewildering array of "properties," ranging from the tangible and familiar to the virtual and exotic. But the basic premises remain, and part of the job of society, government, and especially the courts is to determine how property, both in its traditional and its revolutionary new forms, is to be treated. The rights explosion beginning in the 1950s transformed not only how we view speech and religious liberty, but property as well. To take but one example, the modern state provides a number of tangible benefits to its citizens including social welfare programs, old age pensions, unemployment benefits, and health insurance. These are now seen by many as a form of property rights, to which the citizens are fully entitled.

In the second half of the 20th century, the civil rights and environmental movements led to laws that have placed significant burdens on traditional concepts of property rights. Restaurant owners can no longer discriminate about whom they will serve, while both businesses and private property owners often must bear the cost of environmental protection programs. Government regulations affecting all sectors of the economy and the society further eroded the old notion that owners can do completely what they will with their businesses and property. These inroads have led some commentators to charge that property rights had been consigned to "a legal dust-bin."

There would be some justification for this view, but only if one considered property rights inviolate, a condition that has never existed in either American or English law. Even John Locke, while extolling the primacy of property as the guarantor of other rights, nonetheless recognized significant limits on its use. If in one period of American history the notion of laissez-faire (a French expression meaning to "let people do what they want") put too great an emphasis on property rights, in other periods there perhaps has been too little. In the last two decades, the federal courts have been leading the way in trying to strike a new balance between the legitimate concerns of the modern state and how those concerns impinge on the rights of property.

In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic congestion, or environmental harms. When there is doubt concerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of [property owners]. If the government can demonstrate that the conditions it has imposed in a land-use permit are rational, impartial, and conducive to fulfilling the aims of a valid land-use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the [property] belongs squarely on the shoulders of the party challenging the state action.

In a free enterprise system, property takes many forms, and each form has a particular value to different interests. Polls show that more than 70 percent of the American people place great value on property rights. The traditional view of substantial rights in property has served the American people well for more than 200 years, and the challenge is to take the values underlying that commitment and apply it to new situations, to new forms of property, in a manner that will protect both the owner of the property as well as the public.

For further reading:

Bruce A. Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977).

James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (2nd ed., New York: Oxford University Press, 1998).

Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985).

Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and the Foundations of the American Constitution (Albany: State University of New York Press, 1989).

William B. Scott, In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (Bloomington: Indiana University Press, 1977).

Chapter 10: Cruel or Unusual Punishment »