Property in the Constitution 3

I recently wrote about private property in colonial America. Today, I’ll pick up where I left off, with a discussion of protections for property rights codified in the Constitution, and later in the Bill of Rights. This will be the final broad, generalized background post, before we begin marching through Supreme Court cases, starting next time with Barron v. Baltimore.

The Constitution

Reflecting their Revolutionary ideology – which included strands of Enlightenment liberalism and classical republicanism – as well as lessons learned from the failures (real and perceived) of the Articles of Confederation, the men at the Philadelphia Convention were convinced that strong protections of property rights were crucial to the success and stability of the new nation. Thus, the U.S. Constitution provides five explicit protections for property rights:

  1. Article III, Section 3 states, “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of the Blood, or Forfeiture except during the Life of the Person attainted.” Relevant to our interest in property, this clause means that Congress can punish treason by confiscating a convicted traitor’s property – but they are forbidden from doing so after the traitor’s death. Thus, if a traitor is executed, Congress could not later take his property from his heirs, and so forth.
  1. Two clauses (later amended) denied Congress the power to levy direct taxes, unless apportioned among the states according to population (Article I, Section 2, clause 3; and Article I, Section 9, clause 4, which states “No Captitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.”). These clauses denied Congress the power to levy “direct taxes” – a broad and somewhat ambiguous category of taxes that include property taxes and taxes on income. The Framers recognized that taxes on property – including income – could be politically abused. They particularly feared sectional rivalries, where, for example, Northern industrial interests might use taxation to thwart Western development, or to tax slaveholding, etc. They also recognized that it would be possible for class interests to abuse one another with direct taxes. The Supreme Court declared America’s first attempt at an income tax unconstitutional on the basis of these clauses in the 1895 case Pollock v. Farmers’ Loan & Trust Co. (157 U.S. 673). This case was overturned, and the above clauses of the Constitution superseded, by the Sixteenth Amendment in 1913.
  1. Article I, Section 8 provides that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, the Constitution gives Congress the power to award copyrights and patents, in recognition of the emerging importance of intellectual property. It was thought that ensuring protecting exclusive use of authors and inventors would increase the incentive for individuals to innovate.
  1. Article I, Section 10 denies the several states any authority to impair “the Obligations of Contracts.” This clause was intended to keep politics from interfering with private agreements (such as mortgages). Events in the months leading up to the Constitutional Convention – such as Shays’ Rebellion – convinced the Framers that state intervention in contracts (such as debtor relief laws) could cause major economic turmoil. This clause would be among the most important in the Constitution for the nation’s first one-hundred years, and was subject to much litigation and construction in the early republic. Its importance continues today, but has been significantly diminished since the Supreme Court upheld a temporary freeze on foreclosures in the case Home Building & Loan v. Blaisdell  during the Great Depression.
  1. Article I, Section 10 also denies the power to “make any Thing but gold and silver Coin a Tender in Payment of Debts.” This clause was designed to prevent states from issuing inflationary paper money (“fiat currency” in economic terms) in order to relieve debts. Similar to the previous clause, this was designed to foster a stable economy.

Another set of provisions touch on property, but less directly than in the clauses discussed above. One of these are the general bans on bills of attainder (Article I, Section 9; Article I, Section 10). A bill of attainder is a law that declares a person or group guilty of some crime without the benefit of a trial. Additionally, Congress is given the power to establish “uniform Laws on the Subject of Bankruptcies throughout the United States” (Article I, Section 8). Further, Article I, Section 9 denies Congress the power to lay duties on exports (“No Tax or Duty shall be laid on Articles exported from any State”) or to give preferential treatment to any port (“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”). These clearly fall within a broad category of Congressional powers to regulate the economy (and exemptions to that power) – and thus complement Congress’ Article I, Section 8 power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The larger purpose of all of these clauses is to create a central government powerful enough to foster a strong economy, but not so powerful as to threaten the liberty (or property) of its citizens.

Note that the original Constitution also contained three protections for property in slaves. Article I, Section 2 states that for the purposes of apportionment in Congress, slaves shall be counted as “three fifths” of persons, thus inflating the representation of slave-holders in Congress. Article I, Section 9 denies Congress the authority to ban the importation of slaves before 1808. Finally, Article IV, Section 2, holds that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

The Fifth Amendment

During the debates over the Constitution’s ratification in the several states, many parties, including the so-called “Anti-Federalists” (those who were opposed to the Constitution’s ratification, generally because they felt it created too strong a national government) demanded the inclusion of a Bill of Rights. The Constitution’s supporters, called Federalists, agreed to propose articles for a bill of rights pursuant to the Article V process during the First Congress. Congress passed twelve amendments, and sent them to the states for ratification. The states approved ten of these, which came to be known as the Bill of Rights. The Bill of Rights contains two more provisions explicitly protecting property, both in the Fifth Amendment:

  1. The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” True to Constitutional form, this clause marks out another limit on government power. It states that no property can be taken by the government, except for public use (that is, it cannot take property for private use). Further, it states that when government must take property for public use, it must compensate the owner for the taken property.
  1. The Fifth Amendment states, “No person shall… be deprived of life, liberty, or property, without due process of law.” This “Due Process Clause” has been hugely important in American history. It states that no person can be deprived of his property except after established procedures. Until the 1910s or so, it was generally believed that this clause also placed a substantive limitation on Congress’ ability to regulate economic rights (see Gillman 1993).

Additionally, there are important connections between the explicit protections in the Fifth Amendment with portions of the Fourth, especially its limitations on seizures of peoples’ “houses” and “effects.” In both the Fourth and Fifth Amendments, civil juries of ordinary citizens would be central to ensuring that government (at this time, the national government) would not be abuse the people, as it would be juries that would decide whether searches were “reasonable,” how much compensation justice required, and whether punitive damages should be awarded in light of outrageous governmental conduct (Amar 1998, 80). Further, several scholars have noted that the Takings Clause builds on the Third Amendments limitations of the military, arguing that the Takings Clause was motivated at least in part by a desire to prevent impressment by the military without governmental approval (recall the above mentioned practice of impressing horses and other property into service during the Revolution).

What I’m hoping you’ll take away from all this discussion can be summarized as follows:

  1. Americans have long history of protecting a wide variety of property rights – but those rights have always been understood to be limited.
  2. The Constitution and Bill of Rights contains a number of explicit protections or property rights.
  3. Protection against uncompensated appropriation of property is only one of the many property protections in the Constitution (but this one protection will be the focus of this series of posts).

Moving forward we’ll be focusing entirely on that portion of the Fifth Amendment that states “nor shall private property be taken for public use, without just compensation.” This clause seems straightforward, but raises a number of questions. For starters, it clearly implies that the government may take property for public use, but it does not tell us what qualifies as a public use. Thus we must ask: what qualifies as a “public use”? who gets to decide what a qualifies as a public use? how much compensation is “just” – and who gets to decide that question? These are the sorts of questions that occupy the Supreme Court’s attention when it adjudicates claims in physical takings cases. [By physical takings, I mean takings in which the government actually takes title to property; this distinguishes from “regulatory” and “judicial” takings, in which regulations, etc., deprive owners of the value of their property.] And, as a result, these are the sorts of questions we’ll be exploring in future posts in this series.

Suggested Reading:

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

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

Gillman, Howard. 1993. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Duke University Press.

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

Horowitz, Morton J. 1977. The Transformation of American Law 1780-1860. Harvard University Press.

Ketcham, Ralph. 1993. Framed for Posterity: The Enduring Philosophy of the Constitution. University Press of Kansas.

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


  1. This is really helpful. We don’t do enough of this basic stuff in Con Law and as a result give the impression that the whole Constitution is up for (political) grabs. Its not!

  2. Thanks, John — Logan did a great job with it, a he always does. It’s good to pay attention to the text — I think both his series on physical takings and mine on regulatory have been worth while activities just to remember how very important words and ideas are!

  3. Thank you, professor Brigham! We hope that these posts on property law will ultimately be a supplemental resource for teachers – and as you say, the basics are too frequently left out in introductory courses, so we’re hoping to provide some of that here.

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