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.

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.