The Framers’ understanding of the concept of “property” is an evergreen subject, but it is of particular importance now. For the past few years, some Members of Congress and presidential candidates have lectured us about the alleged virtues of “socialism” or “democratic socialism,” despite the fact that we have a living example in Venezuela of what socialism tends to produce: no power, no food, no water, military rule, and people forced to buy used toilet paper. Perhaps the only redeeming virtue of the lectures that we have received, the ones that have talked about the “garbage” that is our current American economic system, is that the speakers are finally being honest about their intent and their design.
The intent of this Legal Memorandum is to add to the ongoing discussion by examining how the Framers of our Constitution viewed the concept of property and then assessing where we stand today. Specifically, we need to answer three questions:
- How did the Framers view private property?
- Where are we today?
- Since we are not in the position that the Framers intended, how do we remedy that problem?
How Did the Framers View Private Property?
How did the colonists view private property? In the 18th century, most Americans owned and lived off their own land. Agriculture was the principal industry. In fact, the opportunity to acquire land and live off of it was the main reason why colonists left England as well as other nations to come to the United States. The land here was ample, and it was available in fee simple, the type of land entitlement that gave the colonists complete and full ownership of the property, unlike what they could have had in England where all the fee simple title was in the crown and they would at best live at the sufferance of the king and, later, parliament. The opportunity to come and live off the land and in vast amounts was a tremendous attraction and a great value to the people who came here.
The best-known forms of property were, not surprisingly, personalty and realty, as well as incorporeal or future interests such as easements, remainders, and reversions. But it was not limited to those sorts of traditional forms that students learn about in the early part of a course on property law in their first year of law school. Some colonists worked as self-employed artisans or shop owners, writers or inventors, and merchants or financiers in a thriving colonial economy. The shortage of hard currency in the colonies, in fact, forced merchants to rely on commercial paper in order to engage in trade. The result was that early Americans understood the value of items such as book credit, promissory notes, bills of exchange, mortgages, securities, loan certificates, maritime insurance, monetized public debt, and the Lex Moratoria (or law merchant). Accordingly, the Founders’ generation understood that property included the right to possess, use, enjoy, and dispose of land, commodities, currency, or their equivalents.
Our Founding generation also believed that “property” embraced goods earned by the sweat of one’s brow. The term included what “men have in their persons,” which meant the right to the fruits of one’s labors. The prominent English jurist Sir William Blackstone, whose work was well known by all the Framers of our Constitution, concluded, for example, that “[e]very man might use what trade he pleased.” The English philosopher John Locke, whose works were equally well known and influential, argued that every man had a property right in whatever he acquired or produced through his own labor. Adam Smith, as well as Judge and Lord Edward Coke, believed that the right to pursue a lawful occupation was an essential element of the right to property, which could explain why English law disfavored monopolies.
What is more, the Founders believed in natural law and saw it, as well as the unwritten customs of the people, as the source of law’s legitimacy and a feature of “the shared heritage of the English” people. The result was that, as one contemporary scholar described it, “Liberty itself was property possessed.” Knowledgeable about “William Blackstone’s postulate” that every Englishman had the absolute right to “security, liberty, and property,” which they considered part of their heritage as Englishmen, the Framers’ generation believed that the purpose of the law was to protect those guarantees, which “included the ability to acquire and own property.”
The Founders’ generation saw the protection of property as vital to civil society. For example, the Virginia Declaration of Rights, written by George Mason a month before Thomas Jefferson penned the Declaration of Independence, made that point quite clearly. It provided that:
All men have certain inherent natural rights of which they cannot, by any compact, deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
That belief (among others) explains why the American Revolution was not comparable to the French or Russian Revolutions, ones in which “cake-eaters” or the “proletariat” sought to “jettison a privileged, class-based system in favor of a new legal, social, and economic order.” Nor was the Revolution “a capitalist junta” that “sought to adopt ‘rule by a leisured patriciate.’” Finally, in contrast to the 1989 toppling of the Berlin Wall, “the Revolution did not signify the end of a long period in which the government had denied the public any opportunity to enjoy liberty and private property.” On the contrary, “the Colonists had enjoyed both under English law and believed that English constitutional government was the freest in the world.”
The American Revolution was “an ideological, constitutional, political struggle and not primarily a controversy between social groups undertaken to force changes in the organization of the society or the economy.” As the author has written elsewhere:
There was no economic class warfare in the Colonies. Land was plentiful, and labor, especially in the form of skilled artisans, was scarce, allowing every free adult male an opportunity to succeed financially. Anyone who wanted his own land could find it in the western portions of the Colonies or in the unsettled territories across the Appalachian Mountains. Plus, everyone, whether landowners, merchants, or artisans, recognized the economic and social value, including independence, that property ownership bestowed. Indeed, property was “the one great unifying value” existing throughout the colonies. Finally, the leaders of the Revolution did not impose their own radical economic theories on an unwilling populace. “American political leaders did not develop new ideas about private property. They merely demanded that the concept of property long since canonized by the English Whigs also apply in the colonies.”
Consider what James Madison, the author of our Constitution, thought about property. To him, the term included not only realty and personalty, but also anything of value, including a person’s legal rights. “Conscience is the most sacred of all property,” he wrote, “with other property depending in part on positive law, the exercise of that being a natural and inalienable right.” “That is not a just government, nor is property secure under it,” Madison explained, “where the property which a man has in his personal safety and personal liberty is violated by arbitrary seizures of one class of [persons] for the services of the rest.” Madison also went on to criticize a government that imposed “arbitrary restrictions, exemptions, and monopolies to deny to part of its citizens the free use of their faculties and free choice of their occupations, which not only constitute property in the general sense of the word, but are the means of acquiring property.”
Madison explained in detail his view that property was, in his words, a human right. He made that point in a 1792 essay published by the National Gazette:
The term property in its particular application means that dominion which one man claims and exercises over the external things of the world, in the exclusion of every other individual. In its larger and more just meaning, it embraces everything to which a man may attach a value and has a right and which leaves everyone else like advantage. In the former sense, a man’s land or merchandise or money is called his property. In the latter sense, a man has property in his opinions and free communication of them. He has a property of particular value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
The Founders also believed that liberty and property were “inextricably related” and equally valuable. Property was “the guardian of every other right,” and protection of property was “critical to the enjoyment of individual liberty” and “central to the new American social and political order.” Professor Gordon Wood, perhaps the dean of early American legal history, has put it this way:
Eighteenth-century Whiggism had made no rigid distinction between people and property. Property had been defined not simply as material possessions but, following Locke, as the attributes of a man’s personality that gave him a political character: “that estate or substance which a man has and possesses, exclusive of the right and power of all the world besides.” It had been thought of generally in political terms, as an individual dominion—a dominion possessed by all politically significant men, the “people” of society. Property was not set in opposition to individual rights but was of a piece with them.
As one scholar has noted, “Anyone who studies the revolution must notice at once the attachment of all articulate Americans to property. Liberty and property was their cry, not liberty and democracy.” That point was heard throughout the colonies before the Revolution. The twin theme of threatened liberty and property therefore recurred in hundreds of political statements made between 1764 and 1776, and the cry “liberty and property” became the motto of the revolutionary movement. In the minds of the Framers, property rights were indispensable to the success of the new enterprise, given its close association with liberty, and liberty supplied the means to collect property to obtain the rights, and the property in those rights, and the rights to property that men enjoyed.
John Adams, for example, believed that “[p]roperty must be secured or liberty cannot exist.” Laws that threaten the security of property were, for him, subversive of the end for which men prefer society to the state of nature and so subversive of society itself. James Madison, as noted, was a particularly vocal advocate for the value of private property. Writing in The Federalist, Madison stated, “Government is instituted no less for the protection of property than the persons of individuals.” He reiterated that point at the Constitutional Convention of 1787, saying, “The primary objects of civil society are the security of property and public safety.”
Madison did not stand alone. John Adams and Alexander Hamilton agreed with him. Gouverneur Morris, a member of the Convention of 1787, agreed with Madison, Hamilton, and Adams. As he remarked in Philadelphia, “Life and liberty are generally said to be more valuable than property. An accurate view of the matter, however, would nevertheless prove that property is the main object of society.” St. George Tucker, publisher of the first American analysis of Blackstone’s Commentaries, wrote that “[t]he rights of property must be sacred and must be protected. Otherwise, there could be no exertion of either ingenuity or industry, and consequently, nothing but extreme poverty, misery and brutal ignorance.” Prosperity has been possible, he concluded, “only in free states where men could enjoy the fruits of their labor, art and initiative.”
The bottom line is this: The Framers deemed property inherently valuable and critical to civil society and successful government. Stanford University Professor Jack Rakove has summarized the early Americans’ attachment to property as a commonly shared value:
For property was one of the strongest words in the Anglo-American political vocabulary. John Locke had grounded an entire theory of government and the right to resist tyranny on that concept of property, which he did in his second treatise of government. But Locke only gave philosophical rigor to a belief that already permeated Anglo-American law and politics.
For Locke, as for his American readers, the concept of property encompassed not only the objects that a person owned, but also the ability, indeed, the right to acquire them. Just as men had a right to their property, so too they held a property in their rights. Men did not merely claim their rights but also owned them, and their title to liberty was as sound as their title to the land or to the tools with which they earned their livelihood. Furthermore, property was a birthright, a legal entitlement, a material legacy that one industrious generation transmitted to another.
How Do We View Private Property Today?
Where are we today? The concept of property has grown over time. The concept of property originally embraced real, personal, and financial property as well as the interest that people have in the law. Those interests are still deemed property today. We have also seen the Supreme Court of the United States add to the list of property such items as welfare benefits, academic tenure, and other items created by positive law that would have been unknown to the Framers. Yet there is a major difference between the Framers’ understanding of property and ours. The difference stems from the fact that life, liberty, and property are no longer deemed to have a common origin. The Framers believed that, like life and liberty, property was a natural right that every man possessed, not by virtue of positive law, but as a gift from God. That understanding of property has now vanished.
Today, property is seen as merely a creature of positive law. That positive law, by the way, does not include the Constitution itself, even though that document prominently uses the term “property.” As the Supreme Court explained in 1972 in Board of Regents of State Colleges v. Roth, “[p]roperty interests, of course, are not created by the Constitution.” Perhaps the Court used the phrase “of course” as a way of trying not to explain why property interests—a term that shows up in the Fifth and Fourteenth Amendments (along with intellectual property rights protected by the Copyright and Patent Clause)—do not have a source in the Constitution itself.
What is the result of that? The result is that the state may redefine property interests. Sometimes in the case of the pursuit of honest labor, the government can define that right almost out of existence through occupational licensing laws. Our different contemporary understandings of property and liberty are therefore of considerable importance to public policy because constitutional law now treats them in materially different ways. The government may restrict the exercise of some liberty interests, at least to some extent and at least temporarily, as long as it has a legitimate justification, which it must prove in court. In other cases, the government is quite limited in the regulations it can impose. In those instances, the government may restrict a liberty interest only to serve public goals of the highest order, and even then only to a limited extent and perhaps just for a limited time if at all.
By contrast, since the New Deal, the Supreme Court has permitted the government to regulate private property for reasons and in ways that would have astonished the Framers.
- The government can prohibit individual farmers from growing wheat for their own home personal consumption;
- The government can require a person to have a license to engage in a host of occupations that do not threaten the public health, safety, or welfare; and
- The government can use its eminent domain power to transfer land, including any homes atop that land, from one person to another simply because the new owner might develop the land in a manner that allegedly might more greatly benefit the community.
Because property rights trace their source only to some positive law, the government can regulate and often nullify those interests by a different positive law for almost whatever reason the government sees fit. The result has been to devalue the constitutional status of property and to construe the Due Process Clauses in a quite one-sided, bifurcated manner.
How Do We Return to the Framers View of Private Property?
How do we remedy this state of affairs? We start by returning to the text of the Constitution. That text hardly compels the current dichotomy between higher-level “liberty” and lower-level “property.” On the contrary, the text places property on a par with liberty and assumes that government officials, including judges, would afford them the same respect.
That text has not changed since 1791. All that has changed is the value that the Supreme Court and the academy have placed on property. Their interpretations, however, have a relatively recent origin. Property did not lose its original understanding until the 20th century, while liberty did not begin its current ascent until the 1960s. Since then, the haut monde of American political, legal, and intellectual society have often felt that the Framers’ concern with the protection of property was, to quote American history scholar Edmund Morgan of Yale (who was critical of the notion), “a rather shabby thing” and that the constitutional principles for property discussed from 1776 to 1787 were invented “to hide [property] under a more attractive cloak.”
That belief mistakenly seeks to impose 20th century redistributive economic policies on an 18th century document by denigrating any concern for property as being little more than the desire to constitutionalize protection for greed. The Framers, however, were classically educated men who knew that Western civilization had highly valued property since Roman times. The Supreme Court should not deem itself free to ignore the Framers’ interest in protecting property simply because the economy and society have materially changed over time.
We do not follow that approach elsewhere in the law. We do not abandon the Copyright Clause’s protection against plagiarism of the written word just because the clause also protects photographs and films. We do not abandon the Free Speech Clause’s concern with prior restraints just because that clause also reaches after-the-fact damages. Nor do we abandon that clause’s protection for political speech just because it also includes violent video games. We do not abandon the Fourth Amendment’s protection against law enforcement officers rummaging through our homes without justification or restraint just because the amendment now also protects against the government rummaging through our cell phones in the same manner. And we do not abandon the Cruel and Unusual Punishment Clause’s protection against hideously painful criminal sanctions just because it also prevents the government from imposing an otherwise lawful penalty on a particular category of offenders, such as juveniles.
In other words, it is difficult to articulate a “neutral principle” of constitutional law that justifies disregarding the original understanding of some constitutional guarantees but not all of them.
President Donald Trump was absolutely correct when he said that this country has never been socialist and has never been infected with the ills that socialism would bring. Private property is built into the American ethic, into the American dream, into the American DNA, and is an integral component of our national charter. History reveals that the Framers venerated the right to property, both for its own sake and as a means of guaranteeing personal independence. Property was not simply realty or personalty; it was one with liberty and was a guarantee of the protection of the legal rights that people had.
The Supreme Court needs to relearn American history. The Court treats property as “a poor relation” deserving of far less protection than life or liberty currently receive. The Framers did not see it that way. They believed that neither liberty nor property could exist without the other. That belief, moreover, was nothing new to any 18th century English subject, whether he lived in London or in Williamsburg. Anglo–American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy from Massachusetts through Georgia and must be protected against arbitrary government interference.
The Supreme Court has forgotten the status that property had for the Framers. Reminding the Court may help lift property out of the basement to which it has been relegated by contemporary American constitutional law.
Paul J. Larkin, Jr., is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. This Legal Memorandum is adapted from a speech delivered by the author on March 19, 2019, as part of a Heritage Foundation series on “Free Markets: The Ethical Economic Choice” and an article written by the author and published in the Marquette Law Review.