Law, Boundaries, and the Bounded Self

Abstract

IN THE AMERICAN TRADITION of constitutionalism, property has served as a powerful symbol of as to government. This notion of rights functioning as limits to government involves a complex set of abstractions and metaphoric links that nevertheless is taken as common sense by most Americans. Perhaps the clearest form of that common sense is Government can't take what's mine or the more elegant A man's home is his castle. These phrases convey an image of property as a source of security whose sacredness acts as a barrier even to the power of the state. The enduring power of this image reflects (among other things) the original importance of property in shaping the American conception of as to the legitimate scope of the state. This conception is, in turn, a part of a deeper phenomenon: the focus on boundaries as the means of comprehending and securing the basic values of freedom or autonomy. The importance of property in American constitutionalism both reflects and exacerbates the problems of boundary as a central metaphor in the legal rhetoric of freedom. I have argued in Private Property and the Limits of American Constitutionalism that in the early development of the American Constitution property served as the defining instance of the notion of as limits, and that this notion is an attempt to address the inevitable tension between the individual and the collective.' I concluded that the attempt is deeply flawed and that the problems go beyond the particular limitations of the focus on property. In the end, the new vision of constitutionalism we need requires something more than the replacement of property with other that can serve as boundaries. We need a new conception of the tension between the collective and the individual, for which boundary is not an apt metaphor. My purpose here is to explore that rejection of boundary. Drawing on this earlier work, I start by discussing the American Constitution as an instance of the ways boundary has been central to our conceptual and institutional framework and give an account of how the Constitution came to have the boundarylike structure that it does and of what role property played in the emergence of that structure. I offer a critical appraisal of the lasting consequences of the original focus on property that is within the conventions of constitutional discourse. My argument leads, however, to the claim that the particular limita-