PROPERTY

The Constitution explicitly protects the ownership of private property, not only by the Fifth and fourteenth amendments but also through the fourth amendment and seventh amendment as well as by the contract clause and other provisions of Article I, section 10. The Supreme Court has always regarded property as a material possession having a cash value, but the founding generation possessed a far broader view. Even john locke in his second treatise on government believed that the ownership of property included a right to pursue happiness; he did not restrict his understanding of property to the possession of physical assets with a cash value. A writer in the Boston Gazette in 1768 voiced the prevailing American opinion when he said, "Liberty and Property are not only joined in common discourse, but are in their own natures so nearly ally'd that we cannot be said to possess the one without the other." The virginia declaration of rights of 1776, framed by george mason, guaranteed, in part, "the enjoyment of life and liberty, with the means of acquiring and possessing property," a provision accepted by thomas jefferson and many of the Framers, who believed that liberty and property were indissolubly linked. Many states copied this language in their constitutions.

In 1789 in the first amendment that james madison proposed for a national bill of rights, he appropriated Mason's language and the Lockean meaning of property. He regarded property as a basic human right essential to one's existence, to one's independence, and to one's dignity as a person. Without property, real and personal, one could not enjoy life or liberty, or be free and independent. Only the property holder could make independent decisions and choices because he was not beholden to anyone; he had no need to be subservient. Americans cared about property not just because they were materialistic but because they cared about political freedom and personal independence. They cherished the ownership of property as a prerequisite for the pursuit of happiness, and property opened up a world of intangible values—human dignity, self-regard, and personal fulfillment.

In 1792, Madison wrote an essay entitled "Property," in which he described its "larger and juster meaning." It "embraces," he declared, "every thing to which a man may attach a value and have a right." In a narrow sense it meant one's land, merchandise, or money, but in a broader sense, "a man has property in his opinions and the free communication of them," including his religious opinions, and he has "an equal property" in the full use of his faculties or "a property in his rights" as well as a right to his property. In 1795, however, the Supreme Court endorsed the narrower meaning of property as the ownership of physical assets having financial value, and the Court added that property once vested is inviolable. "The Constitution encircles and renders it an holy thing.… It is sacred," said Justice william paterson, who had been a member of the constitutional convention. His view of the matter prevailed, and the Court showed itself as marvelously imaginative in the invention of judicial doctrines of property that served to promote and protect corporate interests.

Leonard W. Levy
(2000)