Background - Property

Foundational Texts

1. John Locke, Second Treatise of Civil Government (1689) (Supp. I, 3)

   1. Property is pre-political. “[I]n the beginning all the world was America.” Even absent state control or “any express compact of all the commoners,” men have private property. How?

   2. Labor theory of property. “[E]very man has a property in his own person,” so “[t]he labor of his body, and the work of his hands, we may say, are properly his.” Therefore, “[w]hatsoever then he removes out of the state that nature hath provided...he hath mixed his labour with,...[and] it hath by this labour something annexed to it, that excludes the common right of other men.”

   3. Purpose of government to protect property. “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”

2. Wm. Blackstone, Commentaries on the Laws of England (1765) (Supp. I, 15)

   1. Property is sole dominion. The “right of property” is “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

   2. Individual > community. It is an “absolute right” that “consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land .... In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good....

   3. Eminent domain. No legislature may “absolutely strip[] the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained....All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price....”

3. The Declaration of Independence (1776) (Supp. I, 43)

   1. Property unalienable right. “We hold these truths to be self-evident[:] [1] that all men are created equal, [2] that they are endowed by their Creator with certain unalienable Rights, [3] that among these are Life, Liberty, and the pursuit of Happiness — [4] That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ....”

4. U.S. Const. amends. I–X, XIV (Supp. I, 45)

   1. Amend. I: “Congress shall make no law ... abridging the freedom of speech ....”

   2. Amend. V: “No person shall ...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

   3. Amend. XIV: “No state shall...deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5. Thomas Jefferson, Notes on the State of Virginia (1787) (Supp. I, 47)

   1. Farmers > urbanites. “Those who labour in the earth are the chosen people of God....The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body.”

6. Jeremy Bentham, Theory of Legislation (1789) (Supp. I, 49)

   1. Property is the work of the law. “[T]here is no such thing as natural property, ...it is entirely the work of the law....If we suppose the least agreement among savages to respect the acquisitions of each other, we see the introduction of a principle to which no name can be given but that of law.”

The Anglo-American Story of Property, Continued

1. Morris Cohen, Property & Sovereignty (1927) (Supp. I, 51)

   1. Property is sovereign power. “[T]he essence of private property is always the right to exclude others....Property [is a] sovereign power compelling service and obedience.”

2. Felix Cohen, Transcendental Nonsense and the Functional Approach (1935) (Supp. I, 53)

   1. Legal protection creates property. The “vicious circle inherent in [legal] reasoning is plain. It purports to base legal protection upon economic value when, as a matter of actual fact, the economic value of [something] depends upon the extent to which it will be legally protected.”

3. Felix Cohen, Dialogue on Private Property (1954) (Supp. I, 55)

   1. Property is “to which the following label can be attached:

      To the world:

      Keep off X unless you have my permission, which I may grant or withhold.

      Signed: Private citizen

      Endorsed: The state.”

4. Richard Weaver, Ideas Have Consequences (1948) (Supp. I, 57)

   1. Property is last metaphysical right. “[T]he rancorous leveling wind of utilitarianism has not brought down...one institution....[T]he right of private property, which is, in fact, the last metaphysical right remaining to us.”

5. Franklin D. Roosevelt, “State of the Union” (1944) (Supp. I, 71)

   1. Second Bill of Rights. The country deserves a “second Bill of Rights,” available to all, including “[t]he right to a useful and remunerative job....The right to earn enough to provide adequate food....The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.”

   2. Affirmative and aspirational rights are not necessarily protective of what someone already has, but may compel government to take action and promote the social welfare.

6. Charles Reich, The New Property (1967) (Supp. I, 65)

   1. Property is bundle of (new) rights. “Organizations are not really ‘owned’ by anyone. What formerly constituted ownership was split up into stockholders’ rights to share in profits, management’s power to set policy, employees’ right to status and security, government’s right to regulate. Thus older forms of wealth were replaced by new forms.

   2. New forms of property. Just as primitive forms of wealth such as beads and blankets gave way to what we familiarly know as property, so ‘property’ gave way to rights growing out of organizations. A job, a stock certificate...a student’s status in a university—these are typical of the new forms of wealth. All of these represent relationships to organizations, so that today a person is identified by his various statuses: an engineer at Boeing, a Ford dealer, a Ph.D. in political science, a student at Yale.”

Foundational Texts

1. Anatole France, Penguin Island (1908) (Supp. I, 77)

   1. Violence is origin of property. “To till the land is one thing, to possess it another ....The right of conquest...is the only right that receives respect since it is the only one that makes itself respected. The sole and proud origin of property is force.”

2. J.-J. Rousseau, The Social Contract (1762) (Supp. I, 81)

   1. State is basis of all rights. “Each individual member of the Community gives himself to it at the moment of its formation....For the State, by reason of the Social Contract which, within it, is the basis of all Rights, is the master of all its members’ goods....”

   2. Community > individual. “[T]he right exercised by each individual over his own particular share must always be subordinated to the overriding claim of the Community as such. Otherwise there would be no strength in the social bond, nor any real power in the exercise of sovereignty.”

3. Dec. of the Rights of Man & the Citizen (1789) (Supp. I, 85)

   1. State is basis of all sovereignty. 3: “The source of all sovereignty is essentially in the nation; no body, no individual can exercise authority that does not proceed from it in plain terms.”

   2. Eminent domain. 17: “Property being a sacred and inviolable right, no one can be deprived of it unless a legally established public necessity evidently demands it, under the condition of a just and prior indemnity.”

4. A. Tocqueville, The Old Regime & the French Revolution (1856) (Supp. I, 87)

   1. Community > individual. The 1794 Code of Frederick the Great was similar to the Declaration of the Rights of Man; “It proclaims that the welfare of the commonwealth and of its inhabitants is the aim of society and the limit of law; ...that the rights of individuals ought to give way to those of the public.”

5. German Basic Law, arts. XIV, XV, XX (Supp. I, 89)

   1. Art. XIV. “Property and the right of inheritance are guaranteed. Their content and limits shall be determined by the laws....Its use should also serve the public weal. Expropriation shall be permitted only in the public weal.

   2. Art. XV. “Land...and means of production may for the purpose of socialization be transferred to public ownership or other forms of publicly controlled economy by a law which shall provide for the nature and extent of compensation.”

   3. Art. XX. Germany “is a democratic and social federal state.”

6. Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1989) (Supp. I, 91)

   1. The “core principles” of the Basic Law “are rooted in three major legal traditions[:]...those of classical-liberal, socialist, and Christian-natural law thought.

   2. Investment Aid Case (F.R.G., 1954) (Supp. I, 95)

      1. Law required industries to invest in iron/coal to support German steel manufacturing; held constitutional.

      2. Community > individual. “The image of man in the Basic Law is not that of an isolated, sovereign individual. On the contrary, the Basic Law has resolved the tension between individual and society in favor of coordination and interdependence with the community....The individual has to accept those limits on his freedom of action which the legislature imposes to cultivate & maintain society.”

   3. Codetermination Case (F.R.G., 1979) (Supp. I, 98)

      1. Law required companies to have equal numbers of workers on their...