Property Rights

From Magna Carta to the Fourteenth Amendment

Bernard Siegan

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351325943
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho de la propiedad

Property Rights: From Magna Carta to the Fourteenth Amendment breaks new ground in our understanding of the genesis of property rights in the United States. According to the standard interpretation, echoed by as lofty an authority as Supreme Court Justice Harry Blackmun, the courts did little in the way of protecting property rights in the early years of our nation. Not only does Siegan find this accepted teaching erroneous, but he finds post-Colonial jurisprudence to be firmly rooted in English common law and the writings of its most revered interpreters. Siegan conducts an exhaustive examination of property rights cases decided by state courts between the time of the ratification of the U.S. Constitution in 1788 and the adoption of the Fourteenth Amendment in 1868. This inventory, which in its sweep captures scores of cases overlooked by previous commentators on the history of property rights, reveals that the protection of these rights is neither a relatively new phenomenon nor a heritage with precarious pedigree. These court cases, as well as early state constitutions, consistently and repeatedly embraced key elements of a property rights jurisprudence, such as protection of the privileges and immunities of citizens, due process of law, equal protection under the law, and prohibitions on the taking of property without just compensation. Case law provides overwhelming evidence that the American legal system, from its inception, has held property rights and their protection in the highest regard.The American Revolution, Siegan reminds us, was fought largely to affirm and protect private property rights-that is, to uphold the "rights of Englishmen"-even if it meant that the colonists would cease being Englishmen. John Locke and other great theoreticians of property rights understood their importance, not only to individuals who happened to possess property, but to the preservation of a free society and to the prosperity of its inhabitants. Siegan's contribution to this venerable tradition lies in his faithful reconstruction of our legal history, which allows us to see just how central property rights have been to the American experiment in liberty-from the very beginning.

1

Introduction

In the debates in 1787-88 to ratify the proposed United States Constitution, opponents of ratification (known as Anti-Federalists) frequently charged that the Constitution did not protect their rights, which they often referred to as the “rights of Englishmen.” They based this charge on the absence of a bill of rights and the scarcity of personal protections in the document. The Anti-Federalists insisted that they had fought a war to secure their liberties, and their deaths and hardships should not have been in vain. Proponents of the Constitution (known as Federalists) replied that these apprehensions were unwarranted, and that the proposed Constitution created a government without the power to deprive the people of the rights which belonged to them under the common law, originally as English citizens and subsequently as American citizens.

To assuage these fears, the Federalists promised that if the proposed Constitution were ratified, they would introduce legislation in the First Congress to amend the Constitution by adding a bill of rights. The Federalists kept their promise and by the end of 1791, the Constitution contained a bill of rights. When the First Congress framed and the states ratified the proposed bill, most Americans believed that it protected and extended the “rights of Englishmen.”

Yet, for over three years, between the ratification of the original Constitution on June 21,1788 and the Bill of Rights on December 15,1791, Americans lived under a Constitution that enumerated relatively few rights against the national government. Three states initially refused to ratify the proposed Bill of Rights.¹ The Anti-Federalists’ fears about the absence of a bill did not resonate with the American public. The absence of this constitutional protection was not considered a matter of serious concern. Americans seemed confident that they were protected under the original Constitution against any excesses or oppressions that the federal government might contemplate.

What were the “rights of Englishmen” that these Americans treasured as their birthright, indelibly secured in the Constitution and, for additional measure, by the Bill of Rights? England had no written constitution but, wrote United States Supreme Court Justice Joseph Bradley in 1872, the “people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from the English sovereigns at various periods of the nation’s history.”² These migrants, explained Justice John Harlan in 1884, “brought with them, as their inheritance, which no government could rightfully impair or destroy, certain guarantees of the rights of life, liberty, and property, which had long been deemed fundamental in Anglo-Saxon institutions.”³

Major sources for these rights were the Magna Carta, executed by King John in 1215, and many subsequent parliamentary confirmations and judicial interpretations of it. Also essential in determining the scope of individual protections were the writings of legal commentators, particularly those of Lord Edward Coke and Judge William Blackstone. Early American courts (both federal and state) utilized these sources to resolve conflicts between the government and the people. To be sure, the Americans had severed their political bonds with England but not their reliance on the English common law. For many Americans, these sources constituted an unwritten English Constitution that secured a large measure of human freedom. As historian Gordon S. Wood has put it, “what made their Revolution seem so unusual [was that] they revolted not against the English Constitution but on behalf of it.”⁴

In this book, I set forth the rights of Englishmen that protected ownership, investment, and entrepreneurship, with particular emphasis on property rights. For although these rights were not enumerated in the original U.S. Constitution, they formed an essential part of its meaning and spirit. They were secured in Article IV, Section 2, as the “Privileges and Immunities of Citizens in the several States,” a provision which Alexander Hamilton referred to as “the basis of the Union.”⁵ As James Madison stated, the Constitution would never have been ratified if the people thought that their liberties were in danger.⁶ The English sources for these rights also illuminate the meaning of these rights. The language of much of the Constitution and Bill of Rights often would be unintelligible in the absence of these sources.

The legal commentaries of Coke and Blackstone concerning protection of property greatly influenced jurisprudence and legal commentary in the United States. Both were often cited by jurists in their opinions. Even when not cited, doctrines attributable to these great English commentators were evident in legal opinions of federal and state courts. With respect to U.S. jurisprudence between the ratification of the Constitution (1788) and ratification of the Fourteenth Amendment (1868), the judiciary frequently accorded protection for property rights commensurate with the rules expressed by these Englishmen.

In 1868, the states ratified the Fourteenth Amendment. Section 1 contains broad guarantees for liberties in the states, as secured by the privileges or immunities, due process, and equal protection clauses. The language of each of these clauses is comprehensive and embodies the meanings previously accorded these concepts by the American judiciary, the branch of government entrusted with the protection of the people’s liberties. The importance of judicial precedent in construing the clauses is evident from the debates of the Thirty-Ninth Congress, which framed the amendment in 1866. Representative John Bingham of Ohio was the principal author of the protective clauses of Section 1 of the Fourteenth Amendment. When asked about the meaning of “due process of law,” he replied: “The courts have settled that long ago, and the gentlemen can go and read their decisions.”⁷ Senator Jacob Howard introduced in the Senate the legislation creating the Fourteenth Amendment and stated that prior judicial interpretations of the meaning of privileges or immunities give “some intimation of what probably will be the opinion of the judiciary.”⁸

Accordingly, federal and state courts had to consider judicial precedent to understand the rights clauses of section 1. These precedents explained what the rights of Americans were in 1866 under these clauses, just as the English sources were authoritative on the rights of Americans in the late 1780s. Inasmuch as many of these judicial opinions relied for their reasoning on the English commentators and cases, it is not surprising that the interpretation of rights to ownership of property in America was not significantly different between the late 1780s and late 1860s.

What perhaps is more surprising is that the United States Supreme Court, commencing in 1987, handed down decisions in land use cases remarkably consistent with the earlier interpretations. Previously the Court had for over fifty years applied deference instead of scrutiny to regulations restricting the ownership and use of private property. This latest turn in Supreme Court interpretation would have pleased Lord Coke and Judge Blackstone who centuries earlier addressed concerns about ownership, investment in, and use of private property that still resonate with twenty-first century Americans. Events over the centuries have not lessened the vital importance of private property. Instead, experience has underscored it. World history has shown that the protection of property rights is essential to maintain human liberty as well as political and economic viability and stability. The rules promulgated by Coke and Blackstone are in this sense as current and relevant today as when they were written.

This work contains seven chapters. Chapters 2 through 6 discuss property rights in different historical periods. Chapter 2 treats the “rights of Englishmen” as they developed from Magna Carta through the great legal commentators. The latter sections of this chapter trace the influence that these English rights had in the American colonies. The founding period in the United States is the focus of Chapter 3, which examines property rights protections in the Articles of Confederation, the new Constitution, and the Bill of Rights. State and federal court decisions in property rights cases in the period between the adoption of the Constitution and the ratification of the Fourteenth Amendment are the focus of Chapter 4. This chapter is critical to an understanding of the role of property rights in the American legal tradition, since it examines many cases that have not been mined by earlier commentators, an oversight that has inevitably skewed our understanding of our early jurisprudence on property rights. Chapters 5 and 6 examine the framing of the Fourteenth Amendment, how its framers understood such critical phrases as “due process” (Chapter 5) and “privileges or immunities” (Chapter 6), and the fate of these concepts in subsequent judicial opinions. The seventh and last chapter offers my concluding thoughts on the centrality of property rights to the American experiment in liberty and self-government. The liberty to own property undergirds the unique American perspective on government as the necessary foundation for private initiative and enterprise to advance public welfare, not the direct provider. Protection of property rights over the centuries provided the necessary conditions for the enormous material benefits presently enjoyed by Americans.

2

The Rights of Englishmen

The protection that the United States Constitution provides for property rights is contained primarily in its two due process clauses and in the takings clause. The due process clauses of the Fifth and Fourteenth Amendments prohibit the federal or state governments from depriving any person of life, liberty, or property, without due process of law. Both secure an owner from governmental deprivation of property that is not imposed pursuant to due process procedures and requirements. The takings clause of the Fifth Amendment provides that “private property shall [not] be taken for public use without just compensation.” Both the due process and takings clauses curtail the power of government to confiscate or excessively regulate private property.

These clauses can be traced to Chapter 29 of the Magna Carta, executed by King Henry III in 1225, and the interpretations of that document and related English property law by the most authoritative of English legal commentators, Edward Coke and William Blackstone. The early English migrants to this continent, their descendants, and subsequent settlers possessed property rights under the laws of England that, after the American Revolution, the original U.S. Constitution, Bill of Rights, and Fourteenth Amendment confirmed and broadened.

King Henry’s Magna Carta was not the first version of this document. The original document was signed in 1215 by John, king of England and Ireland. Chapter 29 of King Henry’s charter was in part an extension and in part a confirmation of Chapter 39 of King John’s charter. To understand the relationship between Chapters 29 and 39 of the Magna Carta and the due process and takings

clauses requires a brief discussion of early English history, beginning with the period in which the first Magna Carta was executed.

I. The Magna Carta

Commencing in 1205, King John and Pope Innocent III engaged in a struggle that led the Pope to excommunicate the king in 1209 and later in 1212 to declare him deposed of his kingdom, thereby releasing his subjects from their allegiance to him. The king fought back, however, which created serious problems both for the English Church and clergy. However, upon Pope Innocent’s agreement to withdraw his decrees of excommunication, John capitulated in 1213 and transferred his kingdom of England and Ireland to the papacy. He then received it back as a feudatory of the Church of Rome, for which he agreed to pay a tribute of 1,000 marks sterling a year (seven hundred for England, and three hundred for Ireland). This arrangement was not unusual since five other European rulers previously became vassals of the Pope. In becoming a vassal of the Pope, King John acquired papal support in his conflict with the English barons.

In late 1214, the English barons, burdened by King John’s serious violations of feudal law and custom, revolted against him. They attacked his castles and seized London, the principal walled town of England, where its populace welcomed them and they occupied many of its parks and palaces. In the following year, a conference to obtain peace between the king and barons was arranged to be held on the plains of Runnymede near Windsor Castle. On June 15, 1215, to terminate the conflict, the king executed a formal document containing 63 chapters that the barons submitted to him, which was originally known as the Charter of Liberties, or the Articles of the Barons, and subsequently called the Great Charter or the Magna Carta.

The barons had revolted because John violated both the substantive and procedural rights of his constituents as established by the common law, custom, and agreement. He imposed at will new rules and penalties and punished without fair or proper process those he charged with wrongdoing. In the Magna Carta John promised, among other things, to return the properties he had seized and to remit the fines he had imposed in violation of existing rules and customs. He agreed that in the future a freeman would only be punished for violating existing rules and then only in proportion to his wrongdoing and would not otherwise be deprived of his liberties and properties.

In the words of historian Charles Mcllwain, “[W]hen King John substituted his will for this law, in proceeding by force against vassals whose wrong had not been judicially proved, civil war and the Great Charter were the result.”¹ The barons had many grievances against King John. They suffered from gross maladministration in his government and his courts. He had exacted the surrender of castles and otherwise made exorbitant financial demands upon every class. He hanged prisoners whom he seized in battle and he forced barons whom he suspected of treasonable inclinations to surrender their children to him as hostages. He also seized lands of the clergy.²

In the Magna Carta, King John agreed to undo the deprivations he had imposed arbitrarily and retroactively and not to impose illegitimate ones in the future. Thus, in Chapter 52, the king agreed that if anyone “has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him.” Chapter 55 provided that all “fines, made with us unjustly or against the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• 1. Introduction
• 2. The Rights of Englishmen
• 3. Interpreting the Constitution and the Bill of Rights
• 4. Judicial Interpretations of Property Rights Prior to the Fourteenth Amendment
• 5. The Due Process Clause of the Fourteenth Amendment
• 6. The Privileges or Immunities Clause of the Fourteenth Amendment
• 7. Concluding Remarks
• Notes
• Index
• Index of Cases
• About the Author