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View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Marquette University Law School Marquette Law Review Volume 100 Article 2 Issue 1 Fall 2016 The Original Understanding of "Property" in the Constitution Paul J. Larkin Jr. Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Constitutional Law Commons Repository Citation Paul J. Larkin Jr., The Original Understanding of "Property" in the Constitution, 100 Marq. L. Rev. 1 (2016). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss1/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. LARKIN-22.DOCX (DO NOT DELETE) 12/28/16 2:19 PM MARQUETTE LAW REVIEW Volume 100 Fall 2016 Number 1 THE ORIGINAL UNDERSTANDING OF “PROPERTY” IN THE CONSTITUTION PAUL J. LARKIN, JR.* 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 “proper- ty” 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 con- cept 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 pro- moting “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 re-examine its precedents in light of what that history teaches. I. INTRODUCTION: UNDERSTANDING PROPERTY ....................................... 2 II. THE STATUS OF PROPERTY IN ENGLAND AT COMMON LAW ................ 16 III. THE STATUS OF PROPERTY IN AMERICA IN THE EIGHTEENTH CENTURY ............................................................................................... 21 A. The Colonists’ and Framers’ Understanding of Property .............. 21 1. The Role of Property in the American Revolution .................. 21 * Senior Legal Research Fellow, The Heritage Foundation; M.P.P. George Washington University, 2012; J.D. Stanford Law School, 1980; B.A. Washington & Lee University, 1977. The views ex- pressed in this article are the author’s own and should not be construed as representing any official position of The Heritage Foundation. I would like to thank Roger Clegg, Lee Edwards, Thomas Graves, John Malcolm, and Clark Neily for their comments on an earlier draft of this Article. I would also like to thank Rachel Miller, Thomas Ranieri, and Hope Steffensen for their excellent re- search assistance. Any mistakes are mine. LARKIN-22.DOCX (DO NOT DELETE) 12/28/16 2:19 PM 2 MARQUETTE LAW REVIEW [100:1 2. The Relationship Between Property and Liberty ..................... 27 B. The Protection of Property in the State and Federal Constitutions .................................................................................. 46 C. The Role of History ....................................................................... 55 IV. THE STATUS OF PROPERTY UNDER AMERICAN GOVERNANCE: THE ROLE FOR REGULATION ................................................................ 61 V. CONCLUSION ......................................................................................... 80 I. INTRODUCTION: UNDERSTANDING PROPERTY The Fifth and Fourteenth Amendments both refer to “property.”1 The Due Process Clauses protect “life, liberty, and property” against government action inconsistent with “due process of law,” while the Takings Clause bars the ex- propriation of “private property” without paying the owner “just compensa- tion.”2 Despite the obvious importance of those terms, the constitutional text does not define them, perhaps because their meaning was well known at the time.3 The result, however, has been to leave the task of definition to the courts, particularly the Supreme Court of the United States.4 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 compensa- tion.”); id. amend. XIV, § 1 (“No State shall . deprive any person of life, liberty, or property, with- out 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 in- dependence 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 defini- tions were simple. See MCDONALD, NOVUS ORDO SECLORUM, supra, at 13 (“The concepts of liber- ty 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 Property”: Adjudicative Due Process in the Administrative State, 62 CORNELL L. REV. 445, 467 (1977) (“[W]hoever hath an absolute Authority to interpret any written or spoken Laws, . it is He who is truly the Law-giver, to all Intents and Purposes, and not the Person who first spoke or wrote them.”) (quoting Benjamin Hoadly, Bishop of Bangor, Sermon Preached before LARKIN-22.DOCX (DO NOT DELETE) 12/28/16 2:19 PM 2016] THE ORIGINAL UNDERSTANDING OF “PROPERTY” 3 The courts have often found that Anglo-American legal history illumi- nates the meaning of terms in the constitutional text.5 For example, the Su- preme Court has found that the Due Process Clauses trace their lineage to the Magna Carta6 and that, in the Framers’ view, the terms “life, liberty and prop- erty” referred to natural rights that every man possessed, not by positive law, but as a gift from the Almighty.7 the King 12 (1717)). 5. See, e.g., United States v. Jones, 132 S. Ct. 945, 949–50 (2012) (discussing the historical meaning of the Fourth Amendment); District of Columbia v. Heller, 554 U.S. 570, 592–98 (2008) (same, the Second Amendment); INS v. Chadha, 462 U.S. 919, 946–47 (1983) (same, the Article I Presentment Clause); Nixon v. Admin. Gen. Serv.’s, 433 U.S. 425, 473–74 (1977) (same, the Bill of Attainder Clause); Gregg v. Georgia, 428 U.S. 153, 169–71 (1976) (lead opinion) (same, the Eighth Amendment Cruel and Unusual Punishments Clause); Williams v. Florida, 399 U.S. 78, 87–90 (1970) (same, the Sixth Amendment Jury Trial Clause); Klopfer v. North Carolina, 386 U.S. 213, 223–25 (1967) (same, the Sixth Amendment Speedy Trial Clause); Myers v. United States, 272 U.S. 52, 109–42 (1926) (same, the Article II Appointments Clause); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (same, the Article III original Jurisdiction of the Supreme Court and the practice of individual justices “riding circuit”). See generally Heller, 554 U.S. at 592 (“We look to this [viz., “the historical background to the Second Amendment”] because it has always been widely under- stood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”). 6. The term “due process of law” stems from Article 39 of Magna Carta of 1215, which provid- ed that “[n]o free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” J.C. HOLT, MAGNA CARTA app. 6, at 461 (2d ed. 1992). The effect of Article 39 was to safeguard life, liberty, and property against arbitrary deprivation by the crown. See, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (“The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta. Lord Coke, in his commentary on those words, (2 Inst. 50,) says they mean due process of law. The constitutions which had been adopted by the several States before the formation of the federal constitution, following the language of the great charter more closely, gener- ally contained the words, ‘but by the judgment of his peers, or the law of the land.’ The ordinance of congress of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, used the same words.”); see also, e.g., Davidson v. Cannon, 474 U.S. 344, 347–48 (1986); Daniels v.
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