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Austin Cline

Property Rights and the Constitution

By November 9, 2003

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There is a common assumption made by both conservatives and libertarians that private property rights are among the most important in the American Constitution - indeed, that they may be more fundamental to the text than personal rights. Is it true, however, that the vigorous protection of property rights was the intention of the Constitution's authors?

Although that is often assumed, it may not be true. Nathan Newman writes:

[E]conomics at the time of the Revolution was a hive of monopolies and all sorts of anti-competitive regulations. The most prominent legal theorist of the time, William Blackstone, thought it obvious that government could require people to grind their flour at a designated mill, since a mill was erected "on condition, that when erected, [all inhabitants] should all grind their corn there only." (3 Commentaries 235). Ferry owners could sue the constructers of bridges as unfair competition against their monopoly rights in this period. (Chadwick v. Property of Haverill Bridge , MA Supreme Judicial Court 1798). American towns regularly regulated the rates charged by mill owners and prohibited building roads in competition with toll roads.

Today, all of the above would be regarded as "obviously" wrong and "obviously" a violation of basic property rights - and I'm sure that more examples could be discussed. Yet, they were not so "obviously" wrong at the time that the Constitution was written. What does this mean?

Well, it doesn't mean that the people at the time were right, unless perhaps you are wedded to the doctrine of originalism. Arguably, the politicians of the time had the foresight to set down the correct principles in the Constitution, but being flawed humans were no more able to always live up to them than we are today. The same sort of thing occurred when the Alien and Sedition Acts were passed in 1798, proscribing a wide range of criticism of the government. First Amendment freedoms of speech and press were virtually nullified under President John Adams.

Should we base our understanding of the First Amendment on what Adams and his supporters did? No. Should we base our understanding of property rights based upon the laws described above? No. Our understanding of both have evolved over time and we can do much better than what was done at the time. We shouldn't be wedded to only what some of the authors of the Constitution thought that document did and did not allow. The Constitution is not a Ouija Board and judges are not mediums selected to channel the spirits of dead politicians.

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lol…you’re and idiot.

September 5, 2010 at 11:52 pm

lol…you’re an idiot.

Interesting article – I suspect that before the state police ( and often after them ) how many armed relatives you had in an area was your main protection.

January 21, 2011 at 11:36 am

lol…you’re an idiot.

If that’s the most substantive response you can muster, then I’m more confident than ever in the position I stated.

January 21, 2011 at 11:45 am
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