Property rights: rights and liberties under the law

Abstract

Property Rights provides a survey of the evolution of constitutional property rights in the United States, from the late colonial era through the present. A central purpose is to explain the constitutional protections for individual property rights which have developed over time, including due process, the right to for government of private property, and regulatory takings. Other topics include inheritance, the treatment of Native American lands, slaves as property, and laws excluding non-citizens from purchasing real estate. Contemporary debates over the extent to which the U.S. Constitution protects private property are complicated and fiercely fought. This book does not claim that these issues are easy to resolve. The purpose, instead, is to emphasize that these modern disagreements have always been with us: The question of the legitimate role of government with respect to private property has defied easy resolution throughout U.S. history. Although the basic proposition that government takings of private property must be compensated was settled at the founding of the United States, no historical consensus has ever been reached on the extent to which is required for other government actions, short of outright appropriations under eminent domain, that affect private property. The book provides a historical context for understanding the rights and liberties associated with private ownership of property, including the many changed circumstances that have forced courts, over time, to consider new parameters for such rights. What constitutional protection of private property has meant in the courts has changed since the founding era. The purpose of this book is to explore these changes through the present day. This book provides a summary of property rights in English and colonial American history, and highlights important transformations in the early national period with respect to protection of private property from government intrusion. Nineteenth century developments focus upon important court decisions interpreting just compensation clauses as well as the protection of property rights through the contracts clause of the federal constitution. The twentieth century experience includes restrictions on uses of private property through zoning laws and environmental regulation, private ownership rights with respect to creditors, intellectual property, and property tax issues. The book describes several new contexts in which property rights have been the subject of important court decisions, particularly intellectual property rights. The book's concluding chapter considers competing visions of property rights in more detail, including property rights in the human body and in environmental resources.