"[T]he right of acquiring and possessing property and having it
protected, is one of the natural inherent and unalienable rights of
A few years ago, one noted political reformer applauded the
"demise of property as a formal constitutional limit." A new view
of the right to property had, in this author's opinion, begun to
replace the old constitutional formalism of the inviolable and
sacred right to property. Indeed, this new conception of property
"requires incursions on traditional property rights. What once
defined the limits to governmental power becomes the prime subject
of affirmative governmental action." The object or purpose of
governmental action should be the various kinds of "redistribution"
that characterize the "regulatory welfare state." And, this
commentator concludes, "[o]nce redistribution can be held out as a
public purpose, it is difficult to see how lines can be drawn
defining some redistribution as, in principle, too much or the
wrong kind." This view of the redistributionist
state--the welfare state--is premised on the discovery that the
right to property is not, as Madison and the framers believed, a
natural right; it is merely a "social construct." As such, it has no
greater value than any other social construct. And like any mere
construct, it can be put in the service of human progress--a
progress that is not limited by "deeply problematic" notions of
"natural rights" or "limited government." "It is now widely accepted,"
this prognosticator concludes, "that property is not a limit to
legitimate governmental action, but a primary subject of it." At the
time, these views seemed wildly inflated--mere wishful thinking on
the part of an intellectual searching for "a new conceptual
framework." The Supreme Court's decision in Kelo v.
City of New London (2005), brings these comments and their
rejection of the views of the American Founders--not to mention the
practical implications of that rejection--to the forefront and
gives us an opportunity to review why the right to property is
essential to the maintenance of liberty and the prevention of
Kelo in the Court of Public Opinion
Kelo represents the reductio ad absurdum of the
Supreme Court's takings clause jurisprudence. As such, it
represents the Supreme Court's indifference to protecting the right
of private property, which is indicative of the contempt for
property rights in much of contemporary America. The Court's
opinion translated the right to private property into a doctrine of
public trust. The right to property must now be considered only a
conditional right; property is held on the condition that no one
else can use the property in a manner that better serves a public
purpose. In some very important sense the right to private property
has actually been abolished. In an acerb dissent, Justice Clarence
Thomas characterized the majority opinion as "far-reaching, and
dangerous." Justice Thomas's stinging rebuke struck a
responsive chord in the court of public opinion. One commentator
remarked that "Kelo sparked a conflagration of outrage that
even months later showed no sign of abating." Nearly every
state legislature considered legislation to restrict the reach of
the Kelo holding. As of January 1, 2007, 34 states passed
measures protecting property in various degrees against eminent
domain takings. In November 2006, 12 states had eminent domain
measures on the ballot and only two of these restrictive measures
failed. Justice John Paul Stevens, writing for
the majority in Kelo, had issued something of an invitation
to the states: "We emphasize that nothing in our opinion precludes
any State from placing further restrictions on its exercise of the
takings power. Indeed, many States already impose 'public use'
requirements that are stricter than the federal baseline."
The states took up Justice Stevens's challenge and, for the most
part, succeeded in reining in some of the more "far-reaching"
aspects of the decision.
As Professor Julia Mahoney points out, however, the strong
public reaction was rather surprising. After all, the Court had
been steadily advancing to the Kelo result since at least
Berman v. Parker (1954) and Hawaii v. Midkiff (1984).
Although the decision was not inevitable, it was a logical
extension of the expansive language and arguments developed in
these earlier decisions. Nevertheless, Kelo was a 5-4
decision and one member of the majority, Justice Anthony Kennedy,
expressed some reservations about the standards of review that
might be developed for a "more narrowly drawn category of
takings." The newest appointments to the Court,
Chief Justice John Roberts and Justice Samuel Alito, are not likely
to change the result in future cases, although it must be kept in
mind that the 5-4 majority in Kelo might be more precarious
than it appears at first glance. At any rate, what probably
attracted public attention--and ultimately public ire--was the
facts of the case. The personal stories of the individuals who were
displaced from their homes by eminent domain were compelling enough
to make them appear to be sympathetic victims of overbearing and
heavy-handed government action.
The Facts of Kelo
In 1990 the city of New London was designated a "distressed
municipality" by the state of Connecticut. State and local
officials were prompted to target the city for "economic
revitalization." The city resurrected the New London Development
Corporation, a private, nonprofit organization first established in
1978, to formulate its economic revitalization plan. Claire
Gaudiani, described by one commentator as "the civically prominent
president of Connecticut College," was tapped to lead the
Corporation's efforts. The Corporation received money from two
state bond issues to support its planning activities, one for $5.35
million and another for $10 million. The Corporation acted quickly.
By February 1998 it had persuaded the Pfizer Corporation (the
employer of Gaudiani's husband) to build a research
facility on the New London waterfront, adjacent to the Fort
Trumbull peninsula area which was the focus of the city's
The city council, in accordance with state law, authorized the
Corporation to purchase property needed for the development or to
acquire it using the city's delegated eminent domain power. Under
the Corporation's plan, some of the property to be acquired was to
be leased to a private developer who would, in turn, transfer
leasehold interests to other private parties.
Nine of the Fort Trumbull neighborhood property owners refused
to sell their property, arguing that the proposed takings did not
meet the "public use" requirements of the Fifth Amendment. The
Connecticut Supreme Court eventually ruled against the property
owners' Fifth Amendment challenge, arguing that economic
development constituted a valid public use under both the
Connecticut and federal Constitutions.
Kelo: Public Use and Public Purpose
The question as posed by Justice Stevens was "whether a city's
decision to take property for the purpose of economic development
satisfies the 'public use' requirement of the Fifth Amendment."
Justice Stevens argued that a narrow or literal reading of the
"public use" requirement had been abandoned long ago by the Court
because "it proved to be impractical given the diverse and always
evolving needs of society." In light of these "evolving needs," the
Court was compelled to understand "public use" in terms of the more
expansive concept of "public purpose." Not only was "public
purpose" a "broader" interpretation but it was also a "more natural
interpretation." It is not entirely clear what Justice
Stevens means by "more natural," but, as Justice Thomas points out
in his dissent, the conflation of "public use" and "public purpose"
is hardly a natural reading of the Constitution since it
contravenes both the text and the spirit of the Constitution.
Justice Stevens's argument is drawn from Progressivism: The
primary role of the Supreme Court is to interpret the Constitution
in a manner that best meets the "evolving needs" of society. The
Court's reasoning, of course, elevates the "needs of society" over
the rights of individuals without a clear argument to justify the
bowdlerization of the constitutional text. There can be little
doubt that the framers of the Fifth Amendment meant it to be a
protection for individual rights. It is true that the framers
acknowledged that the power of eminent domain was an inherent
aspect of sovereignty, but they also recognized that eminent domain
must always be exercised in a manner consistent with individual
rights--hence the requirement that private property can be taken
only for "public use" and that "just compensation" must be paid.
These requirements are restrictions on government designed to
protect the right to property. The Progressive "revolution" of the
early twentieth century, however, made the "needs of society," not
the rights of individuals, the principal focus of judicial
solicitude. Since the "needs of society" are constantly evolving,
it is difficult to discern what precise role the text of the
Constitution plays in a judiciary inspired by Progressivism other
than as a pretext for adding legitimacy to progressively evolving
Two Polar Propositions and the Nether World of "Public
Justice Stevens, however, insists that the Fifth Amendment still
sets limits to what can be demanded by government to meet the
evolving needs of society. "[I]t has long been accepted," Stevens
notes, "that the sovereign may not take the property of A for the
sole purpose of transferring it to another private party B, even
though A is paid just compensation." It is also "equally clear,"
the Justice continues, "that a State may transfer property from one
private party to another if future 'use by the public' is the
purpose of the taking." Justice Stevens is quick to add, however,
that neither of these "two polar propositions" disposes of the case
at hand. The city of New London "would, no doubt be forbidden from
taking petitioners' land for the purpose of conferring a private
benefit on a particular private party." The New London economic
plan did, of course, take property from A and transfer it to
private party B. But, in an argument that seems to be unparalleled
in the annals of constitutional reasoning, Justice Stevens argues
that since "the identities of those private parties were not known
when the plan was adopted," it is "difficult to accuse the
government of having taken A's property to benefit the private
interests of B when the identity of B was unknown."
Justice Stevens would thus rewrite the famous dictum that everyone
seems to concede is the de minimis foundation of takings
jurisprudence: No governmental agency may use eminent domain
proceedings to take property from private party A for the benefit
of private party B unless the identity of private party B has not
been determined at the time of the taking. However one parses this
bowdlerized version of the old--and justly celebrated--dictum, the
fact that private party B will be known only at some future date
does not lessen the fact that property has been transferred to a
private party who will benefit from the government taking. The fact
that the person is unknown at the time of the taking--but it is
known that some private person will benefit from the
taking--does not transform the private party into a public entity.
This argument is remarkable enough on its own terms, but as Justice
Kennedy points out in his concurring opinion, "[t]he identity of
most of the private beneficiaries were unknown at the time
the city formulated its plans." To put the best face on
the matter, Justice Stevens's argument is disingenuous, not to say
And with respect to the second "polar proposition," only a part
of the New London economic redevelopment area was reserved for
"future 'use by the public'." Economic development, not public use,
was the overwhelming "purpose of the taking." Thus, from
Justice Stevens's point of view, the Kelo case existed
somewhere in the nether universe bounded by the "two polar
propositions"--one of which was substantially redefined into an
absurd proposition. Justice Stevens's polar propositions provide no
realistic limits to a takings jurisprudence that seeks to
accommodate itself to the constantly evolving needs of society. The
only constant in this universe is change or evolution, hardly the
ground for a takings jurisprudence--or any other jurisprudence.
Legislative Deference and Judicial
To bolster his argument of the first "polar proposition,"
Justice Stevens cites the famous passage from Calder v. Bull
An act of the Legislature (for I cannot call it a law) contrary
to the great first principles of the social compact, cannot be
considered a rightful exercise of legislative authority.... A few
instances will suffice to explain what I mean.... [A] law that
takes property from A. and gives it to B: It is against all reason
and justice, for a people to entrust a Legislature with such
powers; and, therefore, it cannot be presumed that they have done
it. The genius, the nature, and the spirit, of our State
Governments, amount to a prohibition of such acts of legislation;
and the general principles of law and reason forbid them.
What is immediately striking about Justice Samuel Chase's
opinion is the palpable hostility to the idea of "legislative
deference" in matters involving takings. Justice Stevens relies to
an extraordinary degree on legislative deference in reaching the
result in Kelo. "For more than a century," Stevens writes,
"our public use jurisprudence has wisely eschewed rigid formulas
and intrusive scrutiny in favor of affording legislatures broad
latitude in determining what public needs justify the use of the
takings power." Justice William O. Douglas, writing for a
unanimous Court in Berman v. Parker (1954) marked the
culmination of a trend toward legislative deference that had been
developing for decades. "Subject to specific constitutional
limitations," Douglas argued, "when the legislature has spoken, the
public interest has been declared in terms well-nigh conclusive. In
such cases the legislature, not the judiciary, is the main guardian
of the public needs to be served by societal legislation.... This
principle admits of no exception merely because the power of
eminent domain is involved. The role of the judiciary in
determining whether that power is being exercised for a public
purpose is an extremely narrow one." Clearly, for Douglas, the
takings clause does not represent a constitutional limitation on
governmental power. Indeed, as we will see, the doctrine of
legislative deference converts what the framers intended to be a
limit on government into a grant of power.
This view was confirmed by Justice Sandra Day O'Connor in
Hawaii v. Midkiff (1984). After quoting Bermann,
Justice O'Connor helpfully concluded that "[t]he 'public use'
requirement is thus coterminous with the scope of a sovereign's
police powers." With this grand ipse dixit the
Court extended its regime of legislative deference to the point of
reductio ad absurdum. One commentator aptly described it as
Midkiff involved state land redistribution legislation
"which created a mechanism for condemning residential tracts and
for transferring ownership of the condemned fees simple to existing
lessees." The putative purpose of the legislation was to overcome
"concentrated land ownership" that the state legislature believed
was "responsible for skewing the State's residential fee simple
market, inflating land prices, and injuring the public tranquility
and welfare." Oddly enough, the Ninth Circuit Court of
Appeals found the scheme to be unconstitutional, describing it as
"a naked attempt on the part of the state of Hawaii to take the
private property of A and transfer it to B solely for B's private
use and benefit." Judge Arthur L. Alarcon, writing for the
majority, distinguished the situation in Midkiff from
Berman. In Berman there was a "transformation from
slum to healthy thriving community" which, according to Judge
Alarcon, "represents a change in the use of the land." The Hawaii
Land Reform Act, however, "will result in no change in use of the
property. The property...is currently used for residential
purposes. After condemnation it will be used for residential
purposes.... [This results in] simply different forms of
private use." The difference was that in Berman
the government took actual possession of the condemned property.
Thus, the court concluded, "[t]he key in Berman is the
intermediate step in which the property was transferred from the
private owner to the government for a public purpose." The Hawaii
plan, however, provided for the transfer from private parties to
private parties without the "intermediate step in which the
government holds the property for the accomplishment of a public
purpose. The lessee simply retains possession of residential
property throughout the condemnation process until he receives fee
simple title." This result, according to the court, is not
authorized by Berman: "Nothing in Berman permits the
lessee of property to take ownership of that property from the
owner involuntarily through condemnation proceedings. Nothing in
Berman would provide, as does the Hawaii Land Reform Act,
the lessee of condemned property with greater rights to that
property than the owner."
Justice O'Connor, writing for a unanimous Court in
Midkiff, disagreed. She argued that the Supreme Court has
never struck down an exercise of state eminent domain power where
the use of that power is "rationally related to a conceivable
public purpose." "Regulating oligopoly and the evils
associated with it," she asserted, "is a classic exercise of a
State's police powers." Whether the redistributionist scheme
concocted by the legislature will actually achieve its purpose is
not a proper part of the Court's consideration. It is enough that
the Hawaii Legislature could have believed that the Act would
promote its objectives. No proof that the legislature actually did
believe that the means were calculated to secure the end was
necessary. Even if the legislature did not articulate a rational
ground or basis for its actions, if there was, within the Court's
imagination, a possible argument to support the legislation--even
though unknown to the legislature--then the rational relation
requirement is met.
In response to Judge Alarcon's attempt to distinguish the
Berman holding, Justice O'Connor merely noted that "[t]he
Act advances its purposes without the State's taking actual
possession of the land. In such cases, government does not itself
have to use property to legitimate the taking; it is only the
taking's purpose, and not its mechanics, that must pass scrutiny
under the Public Use Clause." This is a remarkable
assertion: Only the purpose of the taking is subject to "Public Use
Clause" scrutiny, not the means. The Court's deference to
legislative determinations as to what constitutes a "public
purpose" is, as we will see, almost unlimited. The means chosen by
a legislature to accomplish a putative public purpose will receive
no scrutiny whatsoever unless, presumably, they violate a specific
constitutional prohibition. The ends, it seems, justify almost any
Clearly, Midkiff almost banished the private right to
property from the Bill of Rights; the right to property has
certainly been given second-class status. The framers, of course,
believed that the right to property was the comprehensive right,
the right upon which all other rights rested. Today, as a result of
the transformations worked by Progressivism and the New Deal, the
right to property has a very tenuous place in the pantheon of
rights protected by the Constitution.
Several authors have pointed out that the Court signaled its
intent to relegate the rights of property to second-class status in
the Carolene Products case. Economic rights, the Court
declared, would not be subjected to the same heightened judicial
solicitude as other rights protected by the Bill of Rights. In the
area of economic regulation, the Court announced that it would
extend the greatest possible deference to legislative
determinations. "The existence of facts supporting the legislative
judgment," Justice Harlan Stone declared, "is to be presumed, for
regulatory legislation affecting ordinary commercial
transactions." The Court's analysis of commercial
regulation will be premised on the "assumption that it rests upon
some rational basis within the knowledge and experience of the
legislators." The Court's willingness to defer to
legislative judgment was almost unbounded: "[A]ny state of facts
either known or which could reasonably be assumed affords support"
for the rational basis of economic legislation. Professor James
W. Ely notes that in Carolene Products "[e]conomic rights
were implicitly assigned a secondary constitutional status." The
decision, Ely argues, "well illustrated the scant regard for
economic rights shown by the emerging liberal
constitutionalism...[which] affirmed governmental power to redress
social ills, resolve conflicts, regulate business, and intervene in
the economy." More recently, Professor Ely has argued
that "[t]he Supreme Court does not defer to legislative decisions
regarding criminal procedures or the enjoyment of free speech. In
fact, among all the guarantees of the Bill of Rights, only the
public use limitation is singled out for heavy deference to
legislatures. It is highly unlikely that the Framers intended such
an anomalous result." Even though Justice O'Connor had argued
for the broadest possible legislative deference in Midkiff,
by the time of the Kelo decision she had become alarmed that
the "distinction between private and public use of property" had
been abandoned by the majority. "Under the banner of economic
development," O'Connor intoned, "all private property is now
vulnerable to being taken and transferred to another private owner
so long as it might be upgraded--i.e., given to an owner who will
use it in a way that the legislature deems more beneficial to the
public--in the process." It is difficult to understand why Justice
O'Connor did not see the Kelo decision as the fruit of her
own labor in Midkiff.
Property Rights and Social Compact
Even more striking to modern sensibilities--and utterly lost on
Justice Stevens--is Justice Chase's reliance in Calder v.
Bull on the "first principles of the social compact" as a test
of rights and as a limit on legislative power. Three years earlier,
in Van Horne's Lessee v. Dorrance (1795), Justice William
Paterson had also noted the social compact origins of the
Constitution. "The constitution is the work or will of the people
themselves, in their original, sovereign and unlimited capacity,"
Paterson wrote. In contrast, "[l]aw is the work or will of the
legislature in their derivative and subordinate capacity.... The
constitution fixes limits to the exercise of legislative authority,
and prescribes the orbit within which it must move."
And since "the preservation of property then is a primary object of
the social compact," Paterson concluded, "[e]very statute,
derogatory to the rights of property, or that takes away the estate
of a citizen, ought to be construed strictly."
James Madison, the author of the Fifth Amendment, frequently
voiced the opinion that "the idea of compact...is a fundamental
principle of free government." "The original compact," Madison
is the one implied or presumed, but nowhere reduced to writing,
by which a people agree to form one society. The next is a compact,
by which the people in their social state agree to a Government
over them. These two compacts may be considered as blended in the
Constitution of the U.S.
Social compact is the legitimate origin of civil society because
"all men are created equal" and no one has any claim by nature to
be the ruler of anyone else. Legitimate rule therefore must be
grounded on the consent of those who are to be governed. The
Declaration of Independence famously commands that the "just
powers" of government are derived from "the consent of the
governed." It is noteworthy that not all powers are derived from
consent, only the "just powers"--those powers that are employed in
the service of securing the equal rights and liberties of those who
consent to be governed. Thus, the purpose of the social compact is
the protection of the rights of those who consent to be ruled. In
slightly different terms, the purpose of government under the
social compact is to ensure the equal protection of the equal
rights of all those who consent to be ruled and accept the
obligations of the newly formed civil society. Social compact is
thus the origin of the idea of equal protection--which is intrinsic
to the idea of social compact.
Madison on the Right to Property
In his famous essay, "Property," published March 27, 1792, in
the National Gazette, Madison took an expansive view of the
right to property. At the beginning of the essay, Madison
quoted--or rather paraphrased--William Blackstone on property
without attribution: "This term in its particular application means
'that dominion which one man claims and exercises over the external
things of the world, in exclusion of every other individual'."
Madison, however, quickly registered his disagreement with
Blackstone: "In its larger and juster meaning, it embraces every
thing to which a man may attach a value and have a right, and
which leaves to every one else the like advantage."
Thus Blackstone's definition was neither large nor just, and in
Madison's view the common law did not provide an adequate basis for
the right to property.
Following Locke, Madison regarded the right to property as the
comprehensive right, the right that contained all other rights.
Thus, as Madison remarked, "as a man is said to have a right to his
property, he may be equally said to have a property in his
rights." Rights, of course, belong to individuals
in consequence of the fact that "all men are created equal"; in a
word, rights derive from "self-ownership." As Locke declares,
"every Man has a Property in his own Person. This no
Body has any Right to but himself." The result of this
self-ownership is that the right to property must be considered a
private right--the product of individual labor. In addition to
"land, or merchandize, or money," Madison asserts that individuals
also have "a property in [their] opinions and the free exercise of
them." Every individual, of course "has a property very dear to him
in the safety and liberty of his person." But he also has an "equal
property in the free use of his faculties and free choice of the
objects on which to employ them." What is more, each individual
"has a property of peculiar value in his religious opinions, and in
the profession and practice dictated by them." Unlike some
modern-day commentators who see a disjunction between "human
rights" and property rights, Madison clearly argued that property
rights were the core of human rights properly understood.
The connection between property rights and human rights is often
contemptuously dismissed. But Locke and the American Founders saw
the connection in a clear and precise light. Locke notes that one
of the "Bounds" put on the legislative power "by the Society, and
the Law of God and Nature" was that the legislature "must not
raise taxes on the Property of the People, without the
Consent of the People, given by themselves, or their
Deputies." This idea was repeated in unequivocal
terms in the Declaration of Independence. As many have pointed out,
the taxes imposed upon the Colonies by the British Parliament were
not particularly onerous or burdensome. In a time of relative
economic prosperity they could hardly have been judged tyrannical.
But they were taken as evidence of a "design to reduce [the
Colonies] under absolute despotism." Under these circumstances, the
Declaration continues, it is the right of the people, "it is their
duty to throw off such government and to provide new guards for
their future security." If property can be taken (or taxes imposed)
without the consent of the people, then the requirement of the
consent of the governed is in jeopardy because "the right to
property [is] the visible, formal protection of the right to
consent." This is the indefeasible connection
between the right to property, understood as the comprehensive
political right, and human rights. The right to property is the
great fence to liberty, because it is the fence to consent.
Madison is sensible of the fact that "property of every sort" as
well as "the various rights of individuals" is threatened not only
by "an excess of power" on the part of government but also from "an
excess of liberty." Rights thus cannot be understood apart from
responsibilities. Constitutional government and the rule of law
exist at the intersection of rights and obligations. The purpose of
government is to protect the equal rights of all who consent to be
governed; at the same time, however, constitutional government
relies on the active agency of a citizenry willing and capable of
performing the obligations that it has freely imposed upon
Moreover, "just security to property" includes not only
citizens' "possessions" but also "the enjoyment and communication
of their opinions, in which they have an equal, and in the
estimation of some, a more valued property." Most important, just
government is one that protects religious liberty. "Conscience,"
is the most sacred of all property; other property depending in
part on positive law, the exercise of that being a natural and
unalienable right. To guard a man's house as his castle, to pay
public and enforce private debts with the most exact faith, can
give no title to invade a man's conscience which is more sacred
than his castle, or to withhold from it that debt of protection,
for which the public faith is pledged, by the very nature and
original conditions of the social pact.
Madison is emphatic that the rights of conscience are the core
of the right to property. It is the only property right that does
not depend on positive law. All other aspects of the right to
property require positive law for their protection, such as laws of
contract, trespass, libel and so forth. Freedom of conscience
depends solely on individuals and needs no support from the
positive law. As Madison wrote in his essay "Sovereignty," "the
reserved rights of individuals (of conscience for example)...[are]
beyond the legitimate reach of sovereignty, wherever vested or
however viewed." Jefferson had written in the same vein
many years earlier in the Notes on the State of Virginia.
"[O]ur rulers," Jefferson vowed, "can have authority over such
natural rights only as we submitted to them. The rights of
conscience we never submitted, we could not submit."
Both Madison and Jefferson understood that religious liberty was
the foundation of constitutional government. Constitutional
government is premised on the idea that politically irresolvable
questions of religion are not the subject of ordinary politics and
are therefore never subjected to majority vote. Constitutional
government requires not only that the majority rule in the interest
of the whole, i.e., not as a majority faction, but that minorities
are willing to acquiesce in the decisions of the majority. Of
course, minorities will never submit to the rule of the
majority--nor will the majority be impartial--in the contest of
religious questions. Separation of church and state is thus the
necessary ground and foundation of constitutional
government--government derived from "the social pact."
For Madison, religious liberty--the rights of conscience--was
probably the most important manifestation of the right to property.
And it was this comprehensive understanding that put the right to
property at the core of constitutional government and the rule of
The purpose of government that results from "the social pact"
is, to use the language of the Declaration, the "safety and
happiness" of those who consent to be governed. Madison understands
"safety and happiness" in terms of the right to property properly
understood in its comprehensive sense. As Madison notes,
Government is instituted to protect property of every sort; as
well that which lies in the various rights of individuals, as that
which the term particularly expresses. This being the end of
government, that alone is a just government, which
impartially secures to very man, whatever is his
The right to property also includes the "means of acquiring
property," which comprehends the "free use of...faculties, and free
choice of...occupations." Most particularly, however, a "just
security to property" requires "maintaining the inviolability of
property; which provides that none shall be taken directly
even for public use without indemnification to the owner."
Here Madison repeats the "public use" requirement that he had
incorporated into the Fifth Amendment less than three years
earlier. "Public use" as a qualification for government takings is
the core of that "just security to property" which constitutes an
essential restriction on the "just powers of government."
Assaults on other forms of property, such as freedom of speech,
or the free exercise of religion or the free use of faculties are
often disguised and indirect and difficult to discern. Direct
assaults on property under the guise of eminent domain are more
difficult to disguise. Madison argued, however, that an assault on
any aspect of the right to property was an assault on all aspects
of that comprehensive right. An uncompensated taking--or a taking
that transfers property from private person A to private person
B--is, in reality, just as much an assault on freedom of speech or
the free exercise of religion.
There can be little doubt that Madison--and the framers
generally--viewed the right to property as the comprehensive right
which assumed a kind of priority in the political community. The
right to property, of course, is not mentioned in the Declaration
of Independence, but it was understood to be a part of the "pursuit
of happiness"; property in the narrow sense is a necessary but not
sufficient condition of human happiness. Property in the service of
the goods of the body is a necessary precondition of human
happiness which ultimately depends on the goods of the soul, most
notably freedom of conscience. Property lost can be regained;
liberty lost is rarely regained. Thus it is wise to take alarm at
the slightest inroads upon the rights of property. The right to
property therefore serves as a kind of "early warning system" to
invasions of life and liberty. Madison's emphasis on the right of
property stems from his awareness that life and liberty are mainly
jeopardized through the violation of property rights--that
government's demands on citizens bear most immediately and visibly
on their property, whether through direct taxation, confiscation,
or regulation of the use of property. It is therefore prudent,
Madison reasoned, to make the right to property the measure of
A good example of what Madison had in mind is the current (and
protracted) debate about campaign finance reform. Madison would
view campaign finance reform as a massive assault on the right to
property and freedom of speech disguised as an attempt to promote
"free and fair elections." Free and fair elections, of course, are
the hallmark of republican government--but so is the right to
property and the free communication of ideas. Indeed, as Madison
noted, the "right of freely examining public characters and
measures" is the heart of the free elections. And this right--the
core of the First Amendment--"has ever been justly deemed the only
effectual guardian of every other right." The proponents of reform
assume that the right to property and freedom of speech are
incompatible with free and fair elections. As a matter of fairness,
we are told, those who are wealthy should not have greater access
to political speech, although we have yet to hear that those who
possess greater eloquence or more persuasive rhetoric have an
unequal and therefore unjust advantage in elections. Thus campaign
finance restrictions will equalize political rights--inequality of
wealth in politics leads to unequal influence in elections.
Besides, money in politics always implies corruption or the
appearance of corruption. The goal of campaign finance regulation
is therefore two-fold: to reduce corruption (real or imagined), and
to equalize the relative abilities of individuals to influence the
outcome of elections. Reformers believe that any system of private
campaign financing will corrupt the electoral process because it
translates inequality of wealth into inequality of speech and
thereby of political power and influence.
Thus public financing of elections, or severe limits on campaign
spending, are said to be imperative to deliberative democracy.
Reform will increase access to electoral politics, we are told, and
will give a more egalitarian cast to the electoral process. But
equal access will necessarily entail severe restrictions on both
property and freedom of speech. Richard Gephardt, then House
Minority Leader, made this startling pronouncement in 2000: "What
we have here are two important values in conflict: freedom of
speech and our desire for healthy campaigns in a healthy democracy.
You can't have both." No system of private campaign financing
can be egalitarian, because in a free society there will inevitably
be wealth disparities. Because "healthy" campaigns will not reflect
the influence of wealth, such campaigns will themselves eventually
become a factor in the redistribution of wealth. In the eyes of
Gephardt and other campaign finance reformers, the exercise of the
right to property is antithetical to the right to freedom of
speech. In their eyes, Madison was wrong when he argued that the
freedom of speech was integral aspect of the right to property--and
to free and fair elections.
Government control over campaign finance will inevitably mean
government control over politics. Government regulation of campaign
finance is inseparable from government control of the electoral
process itself. Government will not be just a neutral regulator,
but a faction with an interest to promote: the extension and
perpetuation of the administrative state. The surface attractions
of campaign finance regulation seem compelling: free and fair
elections. What reform promises, however, it simply cannot deliver.
Regulation works to the advantage of incumbency, and a career in
politics may be a greater spur to corruption than campaign
contributions. Campaign finance reform co-opts politicians into the
administrative state. In return for powerful incumbency protection,
politicians are eager to transfer a significant portion of First
Amendment liberties to the regulators who populate the
administrative state. The promise of free and fair elections will
produce nothing more than elections that are regulated in the
interest of government itself. Government will serve "public
purposes," but it will no longer be inconvenienced by the necessity
of adhering to free and fair (unregulated) elections--or the
consent of the governed. Regulation, of course, will necessitate
invasions of free speech and the right to property. These invasions
should not be so casually accepted because, as Madison
demonstrated, the ramifications are far-reaching. The exercise of
eminent domain for "public purposes," no less than campaign finance
regulation for "public purposes," strikes at the heart of the
Constitution--it strikes at the very idea of private property. This
is a dangerous dalliance for a free people.
Eminent Domain and Sovereignty
It is indisputable that the power of eminent domain is inherent
in sovereignty. In Vanhorne's Lessee v. Dorrance Justice
Paterson, in perfect agreement with Madison, posits the protection
of property as the first object of government. He concedes, as did
Madison, that "every person ought to contribute his proportion for
public purposes and public exigencies; but no one can be called
upon to surrender or sacrifice his whole property, real and
personal, for the good of the community, without receiving a
recompense in value. This would be laying a burden upon an
individual, which ought to be sustained by the society at large."
Taking of property without compensation would be "an exercise of
power and not of right" and would be
inconsistent with the principles of reason, justice, and moral
rectitude; [it would be] incompatible with the comfort, peace, and
happiness of mankind;...contrary to the principles of social
alliance in every free government; and lastly...contrary both the
letter and spirit of the constitution.
Uncompensated takings would violate the spirit of the
Constitution because it would be a direct violation of the purposes
or ends of government which mandate the protection of property. It
would also contravene the letter of the Constitution by infringing
upon the Fifth Amendment's prohibition against taking property for
public use without just compensation.
The takings clause was, of course, understood by Madison and
Paterson as a limitation on government, a reservation of an
essential ingredient of the people's sovereignty that was not--and
could not be--ceded to government. The purposes of government
cannot be controlled by government itself. Government is a means to
procure those ends which are the result of the unanimous consent of
the people in forming the social compact.
Justice Thomas, in his Kelo dissent, cited Madison's
essay on "Property" to buttress his point that "[t]he Public Use
Clause, like the Just Compensation Clause, is therefore an express
limit on the government's power of eminent domain."
After the incorporation of the takings clause, the express limit on
the federal government also became an express limit on states as
well. As we have seen, the Kelo decision revolved around the
meaning of "public use." Justice Thomas rightly argues that the
Supreme Court has blindly adopted the "public purpose" meaning of
the takings clause, rejecting its "natural reading" as requiring
the actual government use or public use of the confiscated
property. This "blind reading," according to Justice Thomas,
results from the failure to understand "the Clause's history and
original meaning." The result is that the majority's decision "is
further proof that the 'public purpose' standard is not susceptible
of principled application." Indeed, as Justice Thomas
points out, the "public purpose" standard is virtually unlimited,
as Berman, Midkiff and Kelo amply demonstrate.
"Public use," on the other hand, is far more susceptible to precise
limits. Since the takings clause was meant to be a limit on
government, it defies the spirit of the Constitution, which
contemplated limited government, to substitute the more expansive
"public purpose" standard--this is tantamount to a grant of power
rather than a restriction on power. It is, in any case, an
amendment of the Constitution by interpretation--or perhaps simply
by judicial fiat.
Eminent Domain and Public Purpose
But taking property for a "public purpose," where property is
taken from private citizen A and conferred on private citizen (or
corporation) B because B, in the opinion of government, can use the
property in a way that more effectively benefits the public good,
is no less an act of tyranny than an uncompensated taking. It was
this restriction on the private redistribution of property that the
framers made the core of the takings clause. While conceding the
necessity of eminent domain, the framers knew of its potential for
abuse. The power of eminent domain touched on the very heart of
civil society itself--the social compact--which had as its first
object the protection of property. The power of eminent domain, the
framers reasoned, must be carefully restricted and controlled. That
is why it is so shocking to see the casual manner in which the City
of New London--albeit in accordance with state law--delegated its
eminent domain powers to the New London Redevelopment Corporation,
an unelected and politically insulated private corporation that
exercised a sovereign prerogative in determining how the city could
best serve a "public purpose." The potential for abuse of property
rights under the "public purpose" standard is much greater and the
temptation to confiscate property becomes almost irresistible,
especially once the principles of the administrative state are
routinely accepted to be the standard of public purpose. It doesn't
take a powerful imagination to predict the kinds of mischief that
will transpire behind the closed doors of various redevelopment
agencies around the country. Even legislatures at all levels of
government will no longer find it necessary to disguise the fact
that property will be taken from A for the private benefit of B.
After all, there is sure to be a "public purpose," however
implausible or tendentious, lurking in every exercise of eminent
domain. In Justice Stevens's irrefragable logic, as long as the
identities of private beneficiaries can be postponed or concealed,
there are no real barriers--certainly no constitutional
barriers--to private peculation.
Justice Thomas justly complains in dissent that
[a]llowing the government to take property solely for public
purposes is bad enough, but extending the concept of public purpose
to encompass any economically beneficial goal guarantees that these
losses will fall disproportionately on poor communities. Those
communities are not only systematically less likely to put their
lands to the highest and best social use, but are also the least
Justice Thomas, with some bitter irony, wonders what has
happened to the Court's vaunted "heightened judicial solicitude"
for "discrete and insular minorities." Surely, Justice Thomas
chides, "that principle would apply with great force to the
powerless groups and individuals the Public Use Clause protects.
The deferential standard this Court has adopted for the Public Use
Clause is therefore deeply perverse." It was once believed that
those who were isolated from the majoritarian political process,
"discrete and insular" minorities, deserved judicial solicitude,
not judicial deference. The powerless are not those who inhabit the
halls of power in local communities nor are they players in
redevelopment agencies. Their interests--indeed, their rights--are
easily sacrificed to a concept of "public purpose" where private
individuals can be the direct and indirect beneficiaries of eminent
domain. This is indeed a perversion of the rule of law.
Public Purpose and the Administrative State
The "public purpose" standard is well suited to serve the ends
of the administrative state--this was clearly articulated by
Justice Stevens. One great barrier to the complete victory of the
administrative state is private property ownership and the stubborn
refusal--even selfish--on the part of property owners to use their
property for public rather than private purposes. From the point of
view of the administrative state, public purpose standards for
eminent domain effectively transfers all private property into the
hands of government to be used at its discretion. This means that,
in effect, all property is owned by government and property owners
hold property only to the extent that someone else cannot use the
property in a manner that better serves a public purpose. All
property ownership is therefore conditioned by a "public purpose"
standard that is determined by the minions of the administrative
state. As long as property is used for public purposes, then the
administrative state will acquiesce in its use. The problem, of
course, is that "public purposes" are constantly evolving and
creating new demands and requiring new resources. Under public
purpose standards, use is only conditional; private property has
been abolished in the sense that private property is no longer held
as an indefeasible individual right. Property now is only held in
"trust" for the public. As simple examples of this doctrine,
consider only wetlands regulations and endangered species
regulations. Vast tracts of private land have been effectively
confiscated by the operation of these two regulations. Individuals
still own the land, but their use is conditioned by a "public
trust." Whether property is taken without compensation (as in the
case of regulatory takings) or by eminent domain proceedings,
public trust or public purpose takes precedence over private
Blackstone and Feudalism: Natural Rights and
At the beginning of his dissent, Justice Thomas summoned
Blackstone in defense of the Fifth Amendment. "Long ago," Justice
Thomas wrote, "William Blackstone wrote that 'the law of the
land...postpone[s] even public necessity to the sacred and
inviolable rights of private property.' The Framers embodied that
principle in the Constitution, allowing the government to take
property not for 'public necessity,' but instead for 'public
use.'...Defying this understanding, the Court replaces the Public
Use Clause with a Public Purpose Clause...(or perhaps the 'Diverse
and Always Evolving Needs of Society Clause')." But as we have
already seen, Madison had rejected Blackstone's definition of "the
sacred and inviolable rights of private property." Madison sought
to expand the sphere and extend the reach of the natural right to
property. It is true that the common law had gradually developed a
prescriptive private right to property, and it occupies a prominent
place in Blackstone's Commentaries. Blackstone describes the
right to property as an "absolute right, inherent in every
Englishman." Although "the original of private property is probably
founded in nature...the modifications under which we at present
find it, the method of conserving it in the present owner, and of
translating it from man to man, are entirely derived from society;
and are some of these civil advantages, in exchange for which every
individual has resigned a part of his natural liberty." While the
right of property "is probably founded in nature," it is not nature
or natural right which is dispositive for Blackstone; rather it is
the "antient statutes" of England that established the "absolute
right" to property.
The laws of England are therefore, in point of honor and
justice, extremely watchful in ascertaining and protecting this
right...and will not authorize the least violation of it; no, not
even for the general good of the whole community.... In vain may it
be urged, that the good of the individual ought to yield to that of
the community; for it would be dangerous to allow any private man,
or even any public tribunal, to be the judge of this common good,
and to decide whether it be expedient or no. Besides, the public
good is in nothing more essentially interested, than in the
protection of every individual's private rights.
Blackstone concedes, however, that the legislature, exercising
its sovereign prerogatives, "can interpose and compel the
individual to acquiesce." But even the legislature cannot proceed
"by absolutely stripping the subject of his property in an
arbitrary manner; but by giving him a full indemnification and
equivalent for the injury thereby sustained." The legislature as
representative of "the public is now considered as an individual,
treating with an individual for an exchange. All that the
legislature does is to oblige the owner to alienate his possessions
for a reasonable price; and even this is an exertion of power,
which the legislature indulges with caution, and which nothing but
the legislature can perform."
The Founders grounded the right to property in nature, in the
natural equality of human beings. Jefferson echoed Locke's analysis
when he wrote, employing one of the most frequently used republican
metaphors, that the Declaration embodied the "palpable truth, that
the mass of mankind has not been born with saddles on their backs,
nor a favored few booted and spurred, ready to ride them
legitimately, by the grace of God." If some men were born with
saddles and others with boots then nature's intention (and the will
of God) would be manifest.
The necessary inference from the absence of natural rulers is
that by nature, i.e. in a state of nature, every human being is
naturally his own ruler, having sole proprietorship over his own
life, liberty, and property. Since the individual right to life,
liberty, and property is derivative from natural human equality,
these rights were known to the social contract philosophers as
"natural rights"--the dictates of the "laws of nature and nature's
God." It was the change from historical prescription to natural
rights that represents the radical core of the American Revolution
and the American Founding. It was not the rights of Englishmen, as
we are so often told, that was the subject of the Declaration,
but the rights of man derived, not indeed from any particular
constitution or positive law, but from nature. Historical
prescription is ultimately traceable to accident; the existence of
natural rights can be demonstrated as a "self-evident truth" from
the laws of nature and nature's God, the first principle of which
is the natural equality of all human beings. Jefferson, comparing
the American Revolution to the Glorious Revolution, remarked that
"Our Revolution commenced on more favorable ground. It presented us
an album on which we were free to write what we pleased. We had no
occasion to search into musty records, to hunt up royal parchments,
or to investigate the laws and institutions of a semi-barbarous
ancestry. We appealed to those of nature, and found them engraved
on our hearts."
For the framers of the American Constitution, therefore, the
right to property was a fundamental natural right and its status as
a natural right dictated its comprehensive reach, one that was
considerably more extensive than the right to property described by
Blackstone. The prescriptive right to property found in the English
common law evolved in opposition to the feudal idea of property.
Blackstone notes that "it became a fundamental maxim and necessary
principle (though in reality a mere fiction) of our English
tenures, 'that the king is the universal lord and original
proprietor of all the lands in his kingdom; and that no man doth or
can possess any part of it, but what has mediately or immediately
been derived as a gift from him, to be held upon feudal
services'." This necessary fiction regarded all
property as belonging to the King who could, at his pleasure, allow
possession on terms and conditions. Thus, strictly speaking there
was no private right to property, merely the use of the King's
property which would continue as long as it served the interests of
the King's dominion. All property "rights" were conditional upon
service or the promise of service. This fiction was too transparent
to last forever and the contests between Crown and Parliament
gradually eroded the idea that the King's title to the Kingdom was
that of the first occupier-or more accurately, the last conqueror.
But the development of the English right to property, as Blackstone
makes clear, proceeded as exceptions or limitations on the King's
original right as proprietor, not from natural right.
Locke, of course, destroyed all lingering traces of this
doctrine by arguing that labor was the only rightful title to
property. Labor, Locke maintained, was the origin of private
property and property could be alienated only with the consent of
the rightful owner. Once the idea of a right to private property
was established and accepted-as it was at the American founding-the
idea of monarchy itself, and not just its feudal manifestation, was
put in the course of ultimate extinction.
In the Summary View of the Rights of British America,
Jefferson quoted without attribution Blackstone's passage, noted
above, that "A general principle indeed was introduced that 'all
lands in England cited above general characterization of the
fundamental maxim and principle of feudal tenure'."
Jefferson comments that the feudal law is "still the groundwork of
the Common law" and remains in force where specific exemptions have
not been made, such as in Magna Carta, the Petition of Right or the
Declaration of Right. But Jefferson quickly adds that "America was
not conquered by William the Norman, nor its lands surrendered to
him or any of his successors." Indeed, Jefferson states that "our
ancestors...who migrated hither, were farmers, not lawyers," i.e.,
adherents of Locke, not Blackstone. Thus it is labor that
constitutes the title to property, not "antient statutes." As
Professor Harry Jaffa rightly notes, "Jefferson is explicit that he
is asserting the equal rights of human nature under the laws of
nature. The prescriptive, inherited, or historical rights of
Englishmen have nothing whatever to do with the justice of the
In another reference to Blackstone, Jefferson continues that
"the fictitious principle that all lands belong originally to the
king, [the early American colonists] were early persuaded to
believe real, and accordingly took grants of their own lands from
the crown" and because grants could be had for "small sums and on
reasonable rents, there was no inducement to arrest the error and
lay it open to public view." The "fictitious principle"
now stands exposed. Locke had articulated the natural right ground
of the right to private property. As Jaffa comments on this passage
from Jefferson, "the individual's dominion over his property is
absolute because...his dominion over his body and soul is absolute.
In short, the natural right to property...is grounded in the
natural right to own one's self. For the king to claim that he is
the source of the right to the lands carved out of the wilderness
by others is an absurdity." Jefferson's "understanding of
property," Jaffa concludes, was Lockean, meaning that "personal
freedom, personal property, constitutional government, and the rule
of law all originate in the natural right to own one's self."
It is almost unnecessary to add that self-ownership is the
irrefragable dictate of the fact that "all men are created equal."
Professor Jaffa is quite right to point out that the "natural right
to one's self" includes "dominion" or the right to property both in
the goods of the body and of the soul. Surely this was the idea
behind Madison's expansive definition of the right to property in
which the essential aspects of the right to property involved goods
of the soul-most particularly the rights of conscience, but also
the "property in opinions and the free communication of them."
The New Feudalism and the Administrative
The legal fiction of feudal tenures, having been expelled at the
founding, seems to have insinuated its way back into our takings
jurisprudence-this time with the administrative state serving in
the stead of the King. Professor Dennis Coyle, a perceptive critic
of modern takings jurisprudence, writes that "[t]he liberal vision
of the founders that private property would provide the
independence and responsibility on which to anchor democracy has
been obscured by the growth of the state during the twentieth
century. A more hierarchical perspective, that possession of
private property is encumbered by obligations to the state, has
gained prominence.... Landowners are becoming 'stewards' who hold
their property rights at the pleasure of the state."
Professor Coyle has ferreted out some revealing-indeed
startling-passages from legal scholars advocating a return to
features of the feudal system. "Within the traditions of property
law," one luminary scolded, "there is nothing particularly radical
in visualizing land being owned by the sovereign and being
channeled out again to persons who would hold it only as long as
they performed the requisite duties which went with the land."
Indeed, Coyle argues, "[a]rguments for the feudallike encumbrance
of private property have been heard throughout this century." He
quotes a legal scholar who wrote in 1938 that "in [the] case of
feudalism it is regrettable that there could not have been
preserved the idea that all property was held subject to the
performance of duties-not a few of them public." These remarks
were penned at a time when the advocates of the administrative
state were confident that they would prevail in the refounding of
the American system of politics-transforming the regime from one
that protected individual rights and liberties to one in which the
public welfare and the redistribution of property was the primary
object of government. This same scholar expressed surprise that the
principles of the Founding have been so robust: "The perdurance of
assumptions of natural rights has been extremely striking." "[T]he
Constitution's guarantees of both property and liberty began," he
correctly asserts, "with individualism and natural law as a
background." This background forced the framers to accept the
negative idea of "the state as a policeman. That is the general
background of the asserted rights to 'life, liberty, and the
pursuit of happiness.' More positive conceptions of liberty
enriched by state action," this scholar concluded, "belong to
recent, non-individualistic times. They could not have occurred or
appealed to our self-reliant ancestors."
Justice Thomas in his Kelo dissent noted evidence that
the majority decision was animated by what might be called a
version of the "new feudalism." "[I]t is most implausible," Justice
Thomas wrote, "that the Framers intended to defer to legislatures
as to what satisfies the Public Use Clause, uniquely among the
express provisions of the Bill of Rights." Typically, issues
involving fundamental rights trigger heightened scrutiny, but the
Kelo majority was adamant in rejecting any "heightened form
of review"; in matters involving the determination of what
constitutes a "public purpose" the Court will instead indulge the
greatest possible deference to legislative bodies. "Still worse,"
Justice Thomas wrote, "it is backwards to adopt a searching
standard of constitutional review for nontraditional property
interests, such as welfare benefits [citing Goldberg v.
Kelly (1970)], while deferring to the legislature's
determination as to what constitutes a public use when it exercises
the power of eminent domain, and thereby invades individuals'
traditional rights in real property.... Something has gone
seriously awry with this Court's interpretation of the
Constitution." Justice Thomas' conclusion is irresistible: "Once
one accepts, as the Court at least nominally does,...that the
Public Use Clause is a limit on the eminent domain power of the
Federal Government and the States, there is no justification for
the almost complete deference it grants to legislatures as to what
satisfies it." Clearly, the different standards of
deference accorded welfare rights-those rights that form the core
of the administrative state-and the rights of real property
indicate that property rights are no longer understood as
essentially private rights. If the administrative state is
primarily an agent for the redistribution of property, then the
conclusion is inevitable: that ultimately all property-at least
in potentia-belongs to government. The redistribution takes
place on terms and conditions set by government itself. The right
to property has therefore become merely a conditional
right-property is held in public trust. In short, government has
become, once again, the universal landlord.
Edward J. Erler, Ph.D., is a Professor of Political Science
at California State University, San Bernardino.
Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310
(C.C. Pa. 1795) (Patterson, J.).
Jennifer Nedelsky, Private Property and the Limits of American
Constitutionalism: The Madisonian Framework and Its Legacy
(Chicago: University of Chicago Press, 1990), p. 262.
Kelo v. City of New London, 545 U.S. 469, 523 (2005)
(Thomas, J., dissenting).
Julia D. Mahoney, "Kelo's Legacy: Eminent Domain and the Future of
Property Rights," Supreme Court Review (2005), p. 104.
David D. Savage, "Even a Supreme Court Loss Can Propel a Cause,"
Los Angeles Times, January 3, 2007, p. A10.
Mahoney, "Kelo's Legacy," pp. 103-104.
Mahoney, "Kelo's Legacy," p. 107.
See Edward Erler, "Marbury v. Madison and the Progressive
Transformation of Judicial Power," in John Marini and Ken Masugi,
eds., The Progressive Revolution in Politics and Political
Science (Lanham, Md.: Rowman & Littlefield, 2005), pp.
Ibid., 493 (emphasis added).
Ibid., 478, n. 5 (quoting Calder v. Bull, 1 U.S. (3
Dall.) 386, 388 ).
Berman v. Parker, 384 U.S. 26, 32 (1954).
Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
James W. Ely, Jr., "'Poor Relation' Once More: The Supreme Court
and the Vanishing Rights of Property Owners," 2004-2005 Cato
Supreme Court Review (Washington, D.C.: Cato Institute, 2005),
Midkiff v. Tom, 702 F.2d 788, 798 (1983).
U.S. v. Carolene Products Co., 304 U.S. 144, 152
(1938). See Edward Erler, The American Polity: Essays on
the Theory and Practice of Constitutional Government (New York:
Crane Russak, 1991), pp. 91-122.
James W. Ely, Jr., The Guardian of Every Other Right: A
Constitutional History of Property Rights (New York: Oxford
University Press, 1992), pp. 133-134. See Coyle, Property Rights
and the Constitution, p. 43 ("The double standard of
constitutional rights has enjoyed remarkable popularity, stature,
and influence since the New Deal.... Even when property rights were
acknowledged to have constitutional basis, they were considered too
trivial for attention.").
Ely, "'Poor Relation' Once More," p. 62. See Coyle,
Property Rights and the Constitution, pp. 42-43, 119, 125,
156, 167, 175, 185, 247.
Van Horne's Lessee v. Dorrance, 304, 308.
James Madison, Letter to N.P. Trist, Feb. 15, 1830, in Gaillard
Hunt, ed., Writings of James Madison (New York: G.P.
Putnam's Sons, 1900-1910), Vol. 9, p. 355. See Madison, Letter to
Daniel Webster, Mar. 15, 1833, ibid., Vol. 6, p. 605 and
Madison, "Sovereignty," ibid., Vol. 9, pp. 570-571.
James Madison, "Property," in Robert A. Rutland, et al., eds.,
The Papers of James Madison (Charlottesville: University
Press of Virginia, 1983), Vol. 14, p. 266. The unattributed
quote of Blackstone is from Commentaries on the Laws of
England (Chicago: University of Chicago Press, 1979 [originally
published in 1766]), Vol. II, p. 1. Blackstone had written "the
right of property; or that sole and despotic dominion which
one man claims and exercises over the external things of the world,
in total exclusion of the right of any other individual in the
universe" (emphasis added).
Ibid. (emphasis in original). The italicized phrase is a
clear echo of Locke.
John Locke, Two Treatises of Government, Peter Laslett, ed.
(Cambridge: Cambridge University Press, 1988), II, 27 (emphasis in
Madison, "Property," p. 266.
 Locke, Two Treatises of
Government, II.142 (emphasis in original).
 Harvey C. Mansfield, "The Forms of
Liberty," in Fred E. Bauman, ed., Democratic Capitalism? Essays
in Search of a Concept (Charlottesville: University Press of
Virginia, 1986), p. 19.
Madison, "Property," p. 267.
Madison, "Sovereignty," p. 571.
Notes on the State of Virginia, in Merrill Peterson, ed.
Thomas Jefferson: Writings (New York: The Library of
America, 1984), Query XVII, p. 285.
Madison, "Property," p. 266 (emphasis in original).
Ibid., p. 267 (emphasis in original).
See Edward Erler, "The Great Fence to Liberty: The Right to
Property in the American Founding," in Ellen Frankel Paul and
Howard Dickman, eds., Liberty, Property and the
Foundations of the American Constitution (Albany: State
University of New York Press, 1989), p. 56.
The Papers of James Madison, Vol. 17, p. 341.
Nancy Gibbs, "The Wake-Up Call," Time Magazine, June 24,
Van Horne's Lessee v. Dorrance, 304, 310.
Ibid., 521. Justice O'Connor had made the same point in her
dissenting opinion: "The beneficiaries are likely to be those
citizens with disproportionate influence and power in the political
process, including large corporations and development firms"
 Ibid., 505-506 (Citing
Blackstone, Commentaries On the Laws of England, Vol. I, pp.
Blackstone, Commentaries On the Laws of England, Vol. I, pp.
Compare Daniel J. Boorstin, The Genius of American Politics
(Chicago: University of Chicago Press, 1953), p. 82ff, with Harry
V. Jaffa, Equality and Liberty: Theory and Practice in American
Politics (New York: Oxford University Press, 1965) p.
Letter to John Cartwright, June 5, 1824, in Jefferson:
Writings, p. 1491. In 1775, Alexander Hamilton used a similar
image: "The sacred rights of mankind are not to be rummaged for,
among old parchments, or musty records. They are written, as with a
sun beam, in the whole volume of human nature, by the hand
of the divinity itself; and can never be erased or obscured by
mortal power." Farmer Refuted, in Harold C. Syrett, ed.,
The Papers of Alexander Hamilton, Vol. 1 (New York: Columbia
University Press, 1961), p. 122.
Blackstone, Commentaries On the Laws of England, Vol. II, p.
Jefferson: Writings, p. 119.
Jaffa, A New Birth of Freedom, p. 25.
Jefferson: Writings, p. 119.
Jaffa, A New Birth of Freedom, p. 24.
Coyle, Property Rights and the Constitution, pp.
E.F. Roberts, "The Demise of Property Law," Cornell Law
Review, Vol. 57 (1971), p. 43, quoted in Coyle, Property
Rights and the Constitution, p. 213.
Francis S. Philbrick, "Changing Conceptions of Property in Law,"
University of Pennsylvania Law Review, Vol. 86 (1938), p.
710, quoted in Coyle, Property Rights and the Constitution,
Philbrick, "Changing Conceptions of Property in Law," p. 716.
Ibid., 518. Goldberg v. Kelley, 397 U.S. 254 (1970)
held that the Fourteenth Amendment's due process clause requires
that welfare recipients "be afforded an evidentiary hearing
before the termination of benefits" (260). Justice William
Brennan, writing for the majority, argued that "[s]uch benefits are
a matter of statutory entitlement for persons qualified to receive
them.... The constitutional challenge cannot be answered by an
argument that public assistance benefits are a 'privilege' and not
a 'right'" (262). In a footnote, Justice Brennan helpfully
explained that "[i]t may be realistic today to regard welfare
entitlements as more like 'property' than a 'gratuity'" (262 n. 8).
Thus, Brennan concludes "important governmental interests"-the
standard of heightened scrutiny-are served by a constitutional
requirement of "a pre-termination evidentiary hearing." What are
the "important governmental interests?" Brennan is effusive:
"Welfare, by meeting the basic demands of subsistence, can help
bring within the reach of the poor the same opportunities that are
available to others to participate meaningfully in the life of the
community. At the same time, welfare guards against the societal
malaise that may flow from a widespread sense of unjustified
frustration and insecurity" (265). Justice Hugo Black, in dissent,
noted the majority's untenable assumptions about the right to
property: "The Court...in effect says that failure of the
government to pay a promised charitable installment to an
individual deprives that individual of his own property, in
violation of the Due Process Clause of the Fourteenth Amendment. It
somewhat strains credulity to say that the government's promise of
charity to an individual is property belonging to that individual
when the government denies that the individual is honestly entitled
to receive such a payment" (275 [emphasis in original]). Black
suggests that the majority had created a property right in the
redistribution of wealth-that is, a right to property in the
property of others.