Property in Colonial America

Laura and I have been talking for quite some time about putting together a series of posts on property law here at DPP. As she noted a few weeks ago, this is a daunting prospect. Case law can be difficult, and the law of property is vast and particularly complicated, and made worse by the fact that the language of the law (the way judges, lawyers, and legal academics write – we call it “legalese”) is full of words and phrases not commonly used in everyday language.

With that said, this post will be the first in a series looking to render the Supreme Court’s jurisprudence on physical takings in language that any educated reader can grasp. To be clear at the outset, a physical taking is simply taking the title of property that belongs to an individual, group, corporation, state, etc., to press that property into the service of the public.

In a recent Supreme Court case (Arkansas Fish & Game Commission v. United States) Justice Ginsburg, writing for a unanimous Court, stated that there are two fundamental guidelines that mark out the broader contours of its Takings jurisprudence: 1) “The Takings Clause is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole’” , and 2) “’[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.’”

This is pretty clear statement of where the Supreme Court stands – and thus what the state of the law is – in 2014. This series of posts will ultimately tell the story of how takings law has gotten to where it is today, but we’ll get there by taking the long road. My plan is to begin with this brief introduction and a short discussion of ideas and practices regarding property rights in colonial America. Next time, I’ll discuss the provisions of the Constitution and the 5th Amendment that protect property rights. After that, we’ll address the Supreme Court’s first takings case, Barron v. Baltimore, the 14th Amendment, and perhaps a case or two from the post-Bellum period. In each of my following posts, I will focus on one or a few cases, until we’ve arrived at present day.

Here we go:

Colonial America and the Revolution

The belief that the government should protect individual rights has a long and rich history in Anglo-American thought. Since the colonial days, Americans have believed that freedom under government required strong protections for the rights of property.  Political theorists such as John Locke, Algernon Sidney, and Stephen Hopkins, argued that property was crucial to individual independence. In fact, this idea provided the rationale for (occasionally) restricting the right to vote to property holders in the early Republic.

Another influential thinker (and famous English jurist) of the day was William Blackstone, who recognized property as a right “inherent in every Englishman.” That is, for these thinkers, property rights are natural rights that preexist both government and society. For Blackstone, property rights “consist in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” Moreover, he says that respect for property in the law is so great “that it will not authorize the least violation of it; no, not even for the general good of the whole community” (cited in Amar 1998, 77). Thus for Blackstone (and many leading thinkers of the day – including many of the soon-to-be Founding Fathers) property rights are natural, inherent, and fundamental, and they cannot be violated by government.

Three eminent modern political scientists, Howard Gillman, Mark Graber, and Keith Whittington (GGW), summarize colonial attitudes toward property in their textbook on American Constitutionalism, arguing that at the eve of Revolution, Americans “believed that persons had three fundamental property rights: 1. Government could not confiscate property. 2. Government could take property for a public purpose only when government paid the fair value of that property to the original property holder. 3. Government could not tax a person without the consent of that person as manifested by the people’s representatives” (GGW 2013, 36-37).

These ideas about limitation on government (government cannot simply confiscate property), fairness, justice, and consent all mark departures from English tradition. These ideas about property are like much the Revolutionary Era thinking – they are in important part reactions against the practices of the British crown government. Under the British system, all property (even private property) is understood to be held at the pleasure of the king or queen.  Meaning, the owner’s title is limited because the monarch owns the whole domain, but allows people to hold parcels that are subject to recall if the sovereign deems it necessary. Therefore, under the British system, takings of property were not compensated (the King does not have to pay to use his own land – even if it also happens to be your land).

The American reaction to this system of takings is part-and-parcel of the larger reaction against Britain style sovereignty-in-government. A sovereign legislature, like that of England (after the sovereign monarch), could simply confiscate the property. In the American style of government, the people (or “the People”) are sovereign, not their agents in government. Individual rights are aimed at limiting government. Thus respect for an individual right of property operationalizes the sovereignty of the people. As Blackstone put it, “The public is now considered as an individual, treating with an individual for an exchange” (GGW 2013, 37). In other words, prohibition against confiscation and requirements for compensation are a direct expression of sovereignty of the people; they require government to treat individuals fairly and equally.

Now, I do not mean to suggest Americans simply threw a switch in 1776 and began compensating takings. As one would expect, the transition from a British-style system to a more American-style liberal system was piecemeal and imperfect. In fact, during the first decades of American independence, liberty was sometimes restricted in order to accommodate some perceived “common good.” For example, during the Revolutionary War, some communities confiscated privately owned horses and weapons in order to equip the Continental Army. Compensation for these confiscations “was almost always inadequate and sometimes not paid at all” (GGW 2013, 109).

So to briefly summarize, the key takeaways from this post are:

  1. Respect for property rights in America is older than the nation itself.
  2. Property rights are far from absolute in practice, and there is a long history of uncompensated takings in the name of some “public good.”

Suggested Reading:

Bailyn, Bernard. 1992. The Ideological Origins of the American Revolution, 2nd ed. The Belknap Press of Harvard University Press.

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.

Gillman, Howard, Mark A. Graber, and Keith E. Whittington. 2013. American Constitutionalism, Volume II: Rights and Liberties. Oxford University Press.

Locke, John. 2002 [1689]. The Second Treatise of Government and A Letter Concerning Toleration. Dover: Mineola, NY.

Treanor, William Michael. 1985. “The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment.” Yale Law Journal 94: 694-716.

Wood, Gordon S. 1969. The Creation of the American Republic, 1776-1787. University of North Carolina Press.

* Author’s note: A special thanks to my wife, Ashley, for helping me translate the original draft of this post from legalese (or at least, academese) into something much more like normal English.