Paul Larkin, Senior Legal Research Fellow at The Heritage Foundation, asserted that the right to property was essential in establishing the United States and that the Supreme Court has not been respecting that right. He discussed the Framers’ view of the right to property, how the Supreme Court has failed to sufficiently respect this right, and solutions to protect this right more fully.
The Framers held a very high view of the right to property, and expanded its definition further than many would today. “They believed that property embraced far more than mere ownership of land or material goods. The term ‘property’ included “property which men have in their persons as well as their goods,” which included the right to the fruits of their labor.” James Madison wrote: “The term ‘property’ in its particular application, means that dominion which one man claims and exercises over the external things of the world, in the exclusion of every other individual…it embraces everything to which a man may attach a value and has a right…a man’s land or merchandise or money is called his property” and “A man has property in his opinions and free communication of them.”
The Supreme Court has embraced a different view of property. Larkin said: “Today, property is now seen as merely a creature of positive law. That positive law by the way doesn’t include the Constitution itself, even though that document prominently uses the term ‘property.’ As the Supreme Court explained in 1972, in Board of Regents v. State Colleges V. Roth, “Property interests, of course, are not created by the Constitution.”
The expansion of governmental power, which was greenlighted by the Supreme Court, has not been in accordance with the essential, founding principle of the United States to control one’s property. To give some examples, “…since the New Deal, the Supreme Court has permitted the government to regulate private property for reasons and in ways that would have astonished the Framers. The government can prohibit individual farmers from growing wheat for their own personal consumption. The government can require a person to have a license to engage in a host of occupations that do not threaten the public health, safety, or welfare. And the government can use its eminent domain power to transfer land, including any homes atop that land, from one person to another simply because the new owner might develop the land in a manner that would allegedly benefit the community more in different ways.”
The government has justified its expansion by arguing the following: “Because property rights trace their source only to some positive law (not as a right given from God), the government can regulate and often nullify those rights by a different positive law for whatever reason the government sees fit.” Unfortunately, “The result has been to devalue the constitutional status of property, and to construe the due process clauses in a one-sided quite bifurcated manner.”
Finally, Larkin said that to fix the problems with property rights today, “Let’s start by returning to the text of the Constitution. That text hardly compels the current dichotomy between higher-level liberty and lower-level property. On the contrary, the text places property on par with liberty, and assumes that government officials including judges would afford them the same respect.” He said that the Supreme Court should “…not deem itself free to ignore the Framers’ interest in protecting property simply because the economy and society have materially changed over time.”