The Guardian of Every Other Right: A Constitutional History of Property Rights

by James W. Ely Jr.

The Guardian of Every Other Right provides a comprehensive survey of the pivotal relationship between property rights and the Constitution, examining the role of property ownership from the colonial era to current controversies over land use. The text emphasizes the interplay of law, ideology,
politics, and economic change in shaping constitutional thought, and provides a historical perspective on the contemporary debate about property rights. Ely examines such issues as the link between private property and political liberty, the extent to which the government may interfere with private
contracts, and the manner in which discourse about private property changed as American society became industrialized.
Now in its second edition, The Guardian of Every Other Right has been revised to take into account the heightened interest in the constitutional rights of property owners since the first edition appeared in 1991. It focuses on the major legal developments in the field of property rights and offers a
full treatment of important judicial decisions and notable legislation during the 1990s. Particular attention is paid to the Supreme Court decisions which have enlarged the protection afforded property owners under the fifth amendment. It also examines the reach of federal authority under the
commerce clause and the important innovations at the state level. Covering the entire history of property rights, the revised edition of The Guardian of Every Other Right fills an important gap in the literature of constitutional history and is an ideal text for legal and constitutional history
courses.

Genres: Law, History, Nonfiction, United States, Economics, American History

232 pages, Paperback

First published October 31, 1991

Reviews

[Yousef Damra · Rating 5 out of 5]

The Guardian of Every Other Right:A Constitutional History of Property Rights
Third Edition; Oxford University Press 2008
by James W.Ely,Jr

This book is a tour de force of the role and importance to the American people of securing their property rights. In it the Supreme Court until the constitutional revolution of 1937 was champion of property rights in accordance to the principles of the framers of constitution,lockean and Common English law,and most importantly the 5th and 14th amendments of the constitution.

In the first chapter the author demonstrates how crucial it was for the new settlers to protect their property rights especially land,by tracing the principles back to the Magna Carta and English common law,demonstrating the common belief against government controls in contracts,and the growing conflicts between the king and the colonists. Because of the abundant land,which was distributed to those able to cultivate it,and high wages most settlers were middle class and by all accounts the richest in the world. “The people gave allegiance to the government in exchange for protection of their inherent or natural rights.Deviation by the rulers from this fundamental agreement provided grounds for their overthrow. … It is difficult to overestimate the impact of the Lockean concept of property...Property ownership was identified with the preservation of political liberty.Eminent domain was frowned upon and very limited;very little property was under “public” or governmental control.”’ Liberty and Property’ became the motto of the revolutionary movement”

In the second chapter titled The Revolutionary era 1765-1787 demonstrates further that the ideas discussed earlier were fundamental to the Revolutionaries and it shows that the people were weary of state intervention in property rights via regulations and interfering with contracts and even at times abolishing them.

The third chapter tells the story of drafting the constitution while emphasising the role property rights played.Many states were wary that the federal government had too many powers and that there needed to be checks for the government whilst others thought that the government was by the people so it could not rule over them and thus the checks were unnecessary. The results of this pull and push was the passing of the bill of rights and several important clauses.Like the contract clause which prohibts goverment from “impairing the obligation of contract”.This was one of the most important clauses in the constituition until 1937.Virginia and North Carolina called for protections for “the means of acquiring,possessng,and protecting property” and also that no person should be “deprived of his life,liberty or property but by the law of the land.” Calls from other delegates called for banning special privileges and monopolies but many these measures were seen to be redundant and included in the due process clause and the fifth amendment.It provides two protections one for fair proccess and the benift of the doubt and also compensation for property taken by the goverment.State legistures had even more protection for property rights .


The fourth chapter which is about the Antebellum Era in which most of the legislative powers were held by the states which promoted mercantile policies to attract venture capital and the protections of new types of property rights like patent and copyright laws.The only regulations on businesses in this era and the one after the civil war but before the New Deal was regulation regarding police power in this sense it can be said that the Antebellum years fundamentally shaped US law jurisprudence to favour capitalism and block any attempts for crony capitalism and protectionist policies.The court also stressed that the individual has the right not only to was the growth of federal power because fear of recession was gone.Slaves were abolished possess property but also dispose of it as he sees fit.

The next chapter contrasts the policies of the North vs the South. In that the north did not confiscate property from defectors unlike the south. Another important development in this era despite earlier opposition from supreme court because now they are humans not property. Several people of color were influential during this period but then laws were passed that called for racial segregation while some were struck down like the law that prohibited blacks from buying property in white neighbourhoods many more were not challenged yet alone struck down.But more importantly the court protected laissez-faire capitalism by:
First,by imposing constitutional standards on the rate-fixing process and the payment of municipal bonds,justicing sought to protect the accumulation of investment capital necessary for economic growth.Second,by reviewing the substantive reasonableness of regulations and striking down class legislation,the Court protected entrepreneurs from unduly onerous restrictions and from laws operating to the advantage of particular groups. Third,by invalidating the state regulations that blocked interstate commerce,the Court showed its determination to defend the national market against parochial state-imposed obstructions.This property-conscious constitutionalism both fulfilled tاث vision of the framers linking individual liberty with security of private property with security of private property and harmonized with the prevailing entrepreneurial ethic of the Gilded age.



Progressive Reform and Judicial Conservatism(1900-1932) as the title of the 6th chapter suggests it was during the era of great social upheaval and change in the ideas of American Intellectuals. Progressives saw that the unregulated that is free market works poorly therefore this needs central planning . So,they sought to give powers to administrative agencies the power over the economy in effect transferring power from the legislative to the executive which the court deemed unconstitutional. The progressives also tried to regulate work hours for workers and especially women the court deemed that also unconstitutional.”the Court treated liberty of contract as the general rule governing economic affairs… interference ...could only be justified only in compelling circumstances.” “Rejecting the notion that legal principles were fixed,reformers demanded law reflect social reality and the underlying needs of society.They called for a connection between law and insights of social science.”In other words freedom of speech cannot be abridged could mean hate speech is not speech or dyeing one’s hair is not freedom of expression and beating is really just kissing!!!Gladly the court still did not enact all the implications of this which only grew and gathered more support from intellectuals.Laws protecting women by demanding same wages for the lesser work often places them at a disadvantage [like all leftist policies now and then].An example from the next chapter “by deciding that the Tenth Amendment stated “but a truism,” Stone removed that provision as a limit on the federal regulation of commerce.”The court struck down laws requiring licenses and certificates to engage in business as limiting businesses and in effect favoured crony capitalism by protecting current businesses from newcomers except of course those with ties with power. The court also overturned a law requiring parents to send their kids to public schools because it “interfered with both the liberty of parents and the property of rights of private schools.”All these were struck down by overwhelming majorities.But the progressives needed to fund the social welfare programs so they passed the 16th amendment which “fundamentally altered the constitutional norm of an even-handed tax policy,the Sixteenth Amendment opened the door for tax policies designed to redistribute wealth.Moreover,it provided an enhanced revenue source from which the federal government greatly extended its reach over the American society.”Then the Prohibition happened. “Throughout this period,reformers viewed the federal judiciary as an obstacle to their program.They felt that corrective social and economic legislation was difficult to achieve as long as the Supreme Court extended significant constitutional protection to the rights of property owners”.So they decided to undermine the Court in the following ways:

“Weaken the aura of sanctity surrounding the US constitution and the Supreme Court.”Beard published a book depicting the drafting of the constitution to be an attempt of the wealthy to oppress the weak [because marxism of course].It was influential although “Beard’s analysis has been sharply challenged by later historians”.


Claiming Property is not that important;don’t you want free stuff?Yey!
Judges are biased towards the rich this is not democracy!
The law is arbitrary and ruled by the whims of the judges;why did they gave protections to coal workers while not backers?[the answer of course in the first it was due to real health issue in the later it was statism]

Was this the case?”They never categorically shut the door on economic and social legislation.Moreover,conservative judges genuinely believed that property-conscious constitutionalism enhanced economic liberty and the opportunity to pursue livelihoods. They also feared that legislative redistribution of wealth would undercut economic growth.

The new Deal and the Demise of Propery Conscious Constitutionalism.In short the most judges struck down most legistlations of the new deal. Roosevelt threatened to pack the court with more judges and tried to pass a bill which failed.Then due to popular demand some judges flipped sides and others retired to be replaced by liberals.Then most of what was repealed was judged to be constitutional and this marks the end of property rights as a natural unalienable right. First violation of the declaration of independence and created a mixed economy headed to be a centralized economy. This was called the constitutional revolution. The court distanced itself from the economy and focused exclusively on civil liberties. The court was so fearful to do anything that it upheld a statute,”despite its special interest character and anticompetitive effect.” To illustrate the gravity of this change few quotes would be helpful:
The egalitarian premises behind progressive tax rates, coupled with the elimination of constitutional limits on the power to raise taxes, contained an implicit threat to the security of private property. Enhanced tax revenue was unquestionably necessary to finance the operations of modern government. But the existence of an unbridled tax power suggested that property ownership existed merely at the sufferance of Congress. In theory Congress could effectively confiscate property through taxation.

And
[regarding a law that allowed farmers to sell only a certain number of crops to raise prices]
Justice William O. Douglas broadly affirmed the validity of legal curbs on the rights of property owners. “The fixing of prices, like other applications of the police power,” he wrote, “may reduce the value of the property which is being regulated. But the fact that the value is reduced does not mean that the regulation is invalid.”

Further
By separating property rights from individual freedom, the Carolene Products analysis instituted a double standard of constitutional review under which the Supreme Court afforded a higher level of judicial protection to the preferred category of personal rights. Economic rights were implicitly assigned a secondary constitutional status. Because the reasonableness of economic regulations was presumed, judicial scrutiny of legislation under the rational basis test became purely nominal. Consequently, the Court gave great latitude to Congress and state legislatures to fashion economic policy, while expressing only perfunctory concern for the rights of individual property owners.
Finally
The fundamental constitutional dilemma, of course, is that the framers of the Constitution assigned a much higher standing to property ownership than did the New Deal liberals. The distinction between property rights and personal liberties runs counter to the framers’ belief that rights are closely related and that the protection of property ownership is essential to the enjoyment of political liberty. In keeping with this ideal, the Constitution does not divide rights into categories. As a practical matter, a line between economic rights and other liberties cannot be drawn with precision. Moreover, it is difficult to reconcile the subordination of property rights with the specific property guarantees in the Constitution. Another problem is that Carolene Products simply ignored the Supreme Court’s long heritage of safeguarding property ownership from legislative intrusion. Despite some continuing criticism, however, the constitutional double standard in Carolene Products quickly became the new orthodoxy.


Property Rights and the Regulatory State. During this era powers traditionally conferred to the states are now under federal control because of a far reaching progressive interpretation of the commerce clause(the main purpose of this clause is to promote free trade among states). The first time the Court has ruled for state power against federal intrusion was in 1995 overturning a law that made carrying guns in schools a federal crime(deeming it has nothing to do with trade with other states so why it is a federal crime?) but in a similar case in 2005 the Court upheld a law that made it illegal to possess marijuana even in states that permitted it. But nonetheless “Late in the twentieth century, the Supreme Court became increasingly vigorous in scrutinizing state economic regulations under the dormant commerce power. The Court struck down numerous state statutes restricting the export of goods or giving state residents preferred access to natural resources.”However the economic due process was rarely if ever invoked.A new group of scholars emerged in the 70s defending property rights,free markets and a stricter interpretation of the constitution and even called for reversing the constitutional revolution of 1937.This cause was helped by Nixon’s four conservative judges and this idea shone best with the sweeping victory of Ronald Reagan who viewed government as the problem and not the solution[finally a person with a sense!].In 1977 the first time in 40 years the Court struck down a law under the contract clause.And again in 1978 struck down a law in which Minnesota legislature imposed additional financial burden on a private company after contracting with it;Judge Stewart said a contract “is not a dead letter” and added the court must impose some limits on the power of the state.But in 1983,1987,and 1992 the court returned to a more progressive way of thinking by ruling for the exact opposite of the earlier decision in very similar circumstances.However more alarming is the elimination of the public use requirement of eminent domain. In 1954(Berman vs Parker) and 1984(Hawaii… vs Midkiff_ property was taken from a individual owners to private agencies for redevelopment justifying that Justices said “concept of the public welfare is broad and inclusive” and that it only need be “rationally related to a conceivable public purpose’.However more conservative states relying on their constitution did not allow similar measures to pass. Yet in other areas the court held property rights like using the land without owning it like by the military planes that rendered farmland unusable and satellite companies a justifiable cause for compensation[so radical!].But the court still upheld many far-reaching legislations that prevented the free use of one’s property(in 1980 for example),until the 1987(Nollan v. California Coastal Commision) when for the first time since 1920s did the court rule by a narrow margin for the favour of property owners that deemed excessive regulation taking of property. Several cases followed the most significant being Lucas vs South Carolina Coastal Council(1992) which banned landowners from erecting any permanent structures in the privately owned beach.’Scalia determined that regulations that deny an owner “all economically beneficial or productive use of land” constitute a per se taking notwithstanding the public interest advanced to justify the restraint. Scalia explained that the total deprivation of economic use is the practical equivalent of physical appropriation of land. Moreover,he expressed worry that controls preventing economic use “carry with them the heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm”’.
The book traces the Supreme Court’s journey from being a champion of property rights to being dormant and then a shy interlude every now and then.

[Jim · Rating 2 out of 5]

almost useful. ely takes on a task that would plausibly have been useful — to summarize the philosophic and legal history of property rights in the united states — but his preference for brevity over detail makes the project relatively ineffective.

there were two primary limitations to the book from my perspective. first, ely glosses over complexities and offers his judgement in place of persuasive reasoning in a number of cases. the most obvious of these is his surprisingly limited treatment of the founders' understanding and intent surrounding property rights. while ely points to a handful of specific statements by various founders, his approach is highly selective. similarly, while he references the centrality of property rights to lockean political philosophy there is no discussion of the role of property rights in other potentially influential framework. ely's conclusion, then, that the founders intended a property to be as central to liberty to the structure of rights in america falls rather flat, particularly given the limited guidance the founders gave us directing how property rights should be implemented or defending property rights in general. ely elides the difficulty raised by the failure to include property, for example, in the declaration of independence entirely too quickly. i'm not a constitutional scholar and ely might be right, but his conclusions were not well defended.

the second primary limitation was that ely conflates a variety of concepts under "property rights" and by failing to distinguish these, often highly disparate concepts, charts trends jurisprudence that don't seem remotely trend-like. for ely property rights includes what i'd consider fairly clearly-cut property rights: the rights of land-owners to their land, and, of course, slave-holders to their slaves. however, he also includes a set of rights that might more easily be thought of as the rights of property owners related to their property. here, one might include the right of a business owner to not serve a client or to dictate who may assemble on their property. finally, ely includes a broader notion of the rights to transact business under "property rights" ranging from the ability of states and the federal government to regulate businesses to nuances of how contracts should be interpreted. by lumping these disparate concepts, ely misses out on the chance to offer a deeper understanding of what each of these rights means. in addition, his marking of trends for or against property rights is uselessly vague.

at the end of the day i liked the idea of the book, but not the execution.