Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy

by Jennifer Nedelsky

The United States Constitution was designed to secure the rights of individuals and minorities from the tyranny of the majority—or was it? Jennifer Nedelsky's provocative study places this claim in an utterly new light, tracing its origins to the Framers' preoccupation with the protection of private property. She argues that this formative focus on property has shaped our institutions, our political system, and our very understanding of limited government.

Genres: History

357 pages, Paperback

First published December 15, 1990

Reviews

[Erik Champenois · Rating 3 out of 5]

An interesting and illuminating overview of James Madison's political thinking and prioritization of property in designing the United States Constitution vis-à-vis Gouverneur Morris, James Wilson, and the history of modern constitutional thought from a legal perspective. Not the most engaging read but Nedelsky does demonstrate convincingly how Madison's framing of the protection of property was one that protected the rights of the minority (the wealthy) from the majority (the poor). In this way, our constitutional structure encapsulates an assumed permanent class inequality, with the structure favoring civil rights over political rights and the wealthy elite over the masses.

This framing of Madisonian constitutionalism is made particularly clear when Madison's thinking on the subject is contrasted to the more explicit aristocratic vision of Gouvernor Morris, as well as to the more democratic Federalist alternative of James Wilson. James Wilson is a particularly interesting example, as his non-emphasis on democracy and his conception of man as both an autonomous and a social animal lays the basis for a more inclusive, democratic vision of governance than the relatively more elitist vision of James Madison. Madison's strength (and weakness) is his understanding of human conflict and faction, whereas Wilson's strength (and weakness) is his understanding that human nature entails cooperation and societal bonds as well as the protection of individual rights.

Nedelsky's final two chapter covers the legacy of the Madisonian framing, which was further solidified through judicial review and the law-politics distinction, resulting to some extent in the lack of further political debates about underlying property and economic regimes in favor of the interpretation of the Supreme Court. Nedelsky fundamentally argues for the need to update our legal understanding of the U.S. Constitution from a modern post-New Deal welfare state perspective, all the while acknowledging that the older, more conservative property rights-based interpretation remains a more fully articulated vision. She argues for a constitutionalism based on autonomy as the fundamental value rather than property.

I don't have the stronger legal or legal-historical background with which to appreciate and properly evaluate some of Nedelsky's arguments at the end of the book, but I do find Nedelsky's book overall convincing and important in thinking through the various traditions and trajectories of American political thought. The United States remains a highly unequal nation, though historically with more of a middle class than Madison envisioned. Madison's political thought, as brilliant and worthwhile of engagement as he is, is limited by his lack of concern for economic inequality. Had Madison been able to envision a nation less polarized between the rich and the poor, or had he seen more of a threat from the elite than the masses, he may have developed different institutions. In my opinion, Madison's thinking on limits, checks, and balances on political power should also be applied to economic power (both of individuals and corporations) and to legislation to restrict and redistribute such power.

[Roger · Rating 3 out of 5]

The book itself is pretty well-written and contains plenty of good info for how short it is, but it could’ve been a lot better.

Nedelsky tries to make the argument that “the failure of American institutions and political thought to deal adequately with the possibilities of a fully participatory democracy or the problems of the relation between economic and political power is probably the most important legacy of Madisonian federalism.” But she recognizes that she has “done little more than sketch the argument for the relation between these failures and the constitutional framework of institutions and ideas the Federalists set in place. To do more would require empirical studies beyond the scope of my project here. I leave my claims and directions for further inquiry.”

In other words, she tells some good stories, gives some good information, and comes up with some intelligent general points, but she doesn’t make a convincing argument for her case because she doesn’t have the necessary evidence. She gestures broadly and pats herself on the back in one movement.

[Sean · Rating 5 out of 5]

whoa! her premise (this is a real-deal scholarly piece of writing, extensively noted etc [i feel the need to mention this not because inclusion in the academy automatically incurs respect in my mind, but because she's done the legwork to support much of the under-documented assertions of left-wing pamphleteers who many find so easy to brush off as nutso]) is that madison hijacked the constitution-writing and based the whole shebang around protection of property rights OVERTLY over and beyond protection of "individual" rights! and that, in fact, this was one of the primary reasons for abolishing the articles of confederation!
talk about bashing a hegemonic notion right on the noodle.

[Keith · Rating 3 out of 5]

I only read the first two thirds before other priorities pulled me away, but it as very intricately presented view of how the drafters of the constitution viewed the idea of property and its place within the system. She does a very good job of showing how the drafters view property as having a place of power equal or greater to that of living citizens.