College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2013 Property's Constitution James Y. Stern William & Mary Law School,
[email protected] Repository Citation Stern, James Y., "Property's Constitution" (2013). Faculty Publications. 1527. https://scholarship.law.wm.edu/facpubs/1527 Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs California Law Review Vol. 101 April 2013 No. 2 Copyright © 2013 by California Law Review, Inc., a California Nonprofit Corporation Property’s Constitution James Y. Stern∗ Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain. This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. The Article begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people.