Property Rights

One of the fundamental considerations for all societies is an individual's relationship not only to other human beings but also to objects. Thus, the concept and specification of property rights is an essential aspect of society. Property rights means different things to different people. In one sense, property rights may be viewed narrowly and somewhat legalistically. In another sense, property rights can be viewed philosophically and quite broadly. No matter which path is chosen, property rights refers to an area that is often hotly contested and certain to remain controversial.

There is no question that the issue of property rights was important to the founding fathers of the United States. Evidence abounds about the appreciation of and importance attached to property ownership even during the 17th century in the North American colonies. Indeed, property right protections can be traced back to the British Magna Carta of 1215.

John Locke's Second Treatise on Government (1689) had an enormous influence on the Whigs who founded the United States during the middle of the 18th century. Locke's emphasis on natural rights to property affected the thinking and values of the framers of the U.S. Constitution including Jefferson, Madison, and Adams. This is especially true for portions of the Bill of Rights, passed at the Constitutional Convention in Philadelphia in 1787. In addition, language in the Declaration of Independence in 1776 shows Locke's influence as well: Thomas Jefferson's expression of “life, liberty, and the pursuit of happiness” was taken directly from Locke's concern that government needed to protect the “lives, liberties and estates” of its citizens. It is generally concluded that Jefferson viewed owning property as pursuing happiness to be free from government control.

In addition, the Whig philosophy also emphasized the economic importance of private property; [Page 560]property ownership was viewed as essential for the development of the new nation. In fact, the added importance given to the federal government at the Constitutional Convention stemmed from the belief that individuals had a right to property and that private rights were critical for economic growth. In the absence of federal protections (such as the Fifth Amendment), it was feared that state legislatures would overregulate individuals and businesses and that such an environment would preclude rapid development.

Also, by forbidding the government from expropriating property unless it paid for it (under the authority of eminent domain), property rights extended to the prohibition against confiscation by taxation, the protection of property rights in slaves, the forbidding of interference by the state in contracts, and the protection of individuals under “due process.”

By the end of the Civil War, slavery was no longer a legal form of property and industrialization had replaced agriculture as the major form of economic production. These revolutionary changes in economic structure adumbrated a future where Supreme Court rulings would be characterized by the term laissez-faire constitutionalism as the proper approach to the protection of property rights.

By the turn of the 20th century, property rights became increasingly constrained by legislative directives and court decisions that sought to address social issues such as urban congestion, reliance on child labor, overcrowded and slum housing conditions, and growing concerns about public health. In addition, pressure was growing to regulate monopolistic practices common to some industries in the 19th century. In cities, zoning and land use regulation passed an important constitutional challenge in the Euclid v. Ambler Realty Co. (372 U.S. 365 [1926]) case. Since that landmark case, the regulation of urban land became a public rather than private matter. Individual property rights in land have been subject to significant public regulation throughout the latter part of the 20th century beginning with a series of Supreme Court cases in 1987 and, most recently, with the controversial case of Kelo v. City of New London (545 U.S. 469 [2005]).

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