The Constitution and Property Rights

March 21, 2011 by Rob Natelson
Filed under: All Postings, The Founding 

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It is sometimes suggested that the Founders did not consider property rights important because the term “property” was mentioned only once in the Constitution.

The truth is that the Founders were concerned about a range of human values, but property rights were high on their list.  Their Constitution and Bill of Rights protected property in many ways:

* The Founders were worried that Congress might use the tax system to loot property owners in some states for the advantage of other states.  Accordingly, they required that direct taxes (mostly importantly property and income taxes) be apportioned among the states (Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4).  They also required that indirect taxes, such as import duties, be levied uniformly (I-8-1 and I-9-6).  They flatly denied Congress power to tax exports (I-9-5).

* They empowered Congress to protect intellectual property by authorizing copyright and patent laws (I-8-8).

* They granted Congress authority to punish piracy, a crime directed principally against property (I-8-10).

* They denied Congress and the states authority to pass ex post facto laws (I-9-3 and I-10), a ban that some of the Founders thought would protect property.

* When it became clear that the ban on ex post facto laws was not broad enough to protect property, they partially plugged the gap with the Fifth Amendment, which (1) prevented any person from being “deprived of . . . property, without due process of law” and (2) required compensation when “property [was] taken for public use.”

* They added a section (Article I, Section 10) with several provisions protecting financial assets against state governments.

* Similarly, they inserted a section providing that those who had loaned money to the former Confederation Congress would be able to enforce those debts against the new government (V-1).

* They granted the federal courts jurisdiction over interstate land claims and interstate debts to limit the extent to which state courts could discriminate against the property rights of out-of-staters (III-2-1 and III-2-2).

* They added the Full Faith and Credit Clause (IV-1) partly to require state courts to honor property records in other states.

* Most of the Founders opposed slavery, but given the system of the day, they even included provisions that protected “property” in slaves (e.g., I-9-1).

* The Constitution’s Privileges and Immunities Clause (IV-2-1) protected the rights of citizens doing business and owning land in other states (including, by the way, the rights of women and free African-American citizens).

* The Founders gave Congress an unlimited power to dispose of public land (IV-3-2), but only limited power to acquire or hold land (I-8-17 and certain incidental powers).  This was because they wanted most publicly-owned land to be transferred to the private sector.

* The Founders inserted a provision specifically protecting the property of family members of those convicted of treason (III-3-2).

* They adopted the Third Amendment, which largely prevented the government from quartering troops in private homes.

* They adopted the Fourth Amendment, which protected “persons, houses, papers, and effects” from unreasonable search and seizure.

* They added the Eighth Amendment, which barred excessive fines.

* They also inserted a number of other checks and balances, designed partly to protect minorities from unfair property confiscations.

This is quite an extensive list.  The only reason it wasn’t even longer was because the Constitution was designed to give the federal government only limited powers over property.  Under their Constitution, the states, not the federal government, would be the primary protectors and regulators of property.

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