Wednesday, February 1, 2017

The Original Understanding of "Property" in the Constitution

Paul J. Larkin Jr. at Marquette Law Review,
[Abstract] "Contemporary Supreme Court jurisprudence treats 'property' as far less deserving of judicial protection than 'life' or 'liberty.' The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that 'property' and 'liberty' were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of 'property' embraced the legal rights to which everyone was entitled, such as the right to governance under 'the rule of law.' Property was not immune from regulation, but that regulation had to be for the purpose of promoting 'the general Welfare,' not the interests of specific groups or people. It is time for the Supreme Court to revisit Anglo-American legal history and to re-examine its precedents in light of what that history teaches."