William and Mary Law School

Constitutional Protection for Property Rights and the Reasons Why: Distrust Revisited

 Frank I. Michaelman

A country’s constitution, its body of “constitutional” or “higher” law, may contain a “bill” or “charter” of “rights”—a compilation of special guarantees respecting named aspects of personal and associational freedom, authority, and social standing. Lists typically include guarantees respecting faith and conscience, communication and expression, political franchise, security and privacy, equality, due process, and so on. By special guarantees respecting such matters, we mean assurances beyond the general ban a constitution may also contain against interference into personal and social life by legislation that is utterly and incontestably void of any credible, public justification. We do not, however, necessarily mean absolute and unconditional assurances. We may rather mean assurances against non-trivial infringements by the state (or by others with the state’s allowance) for which (or for the state’s allowance of which by others) the state does not provide a sufficiently convincing justification, in terms of some overriding moral or other social purpose that is served by the infringement or by the law that authorizes or allows it.

Our topic of interest here is the inclusion of property rights among those aspects of personal and associational freedom, authority (and so on) that are covered by special constitutional guarantees. But what, then, are “property” rights—as distinguished, say, from freedom, dignity, privacy, equality, and due process rights? In answer: I use the term “property right” roughly to mean a legally supported power and privilege of control over assets external to the embodied self. Accordingly, when I speak of constitutional protection for property rights, I mean supreme-law protection for (i) defensive claims against (ii) disturbances of proprietary positions and prerogatives that (iii) have been lawfully established under (iv) an extant legal regime that supports private ownership.

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1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 217 (2012)