ABSTRACT
This article examines the time-honored thesis that private property is indivisibly linked to the enjoyment of liberty. A reconsideration of this proposition seems timely as both private property and freedom of expression are under assault.
The conviction that property was essential for individual liberty was commonplace throughout the eighteenth and nineteenth centuries. There was an attitudinal change after 1900, however, which had the effect of splitting property from other personal rights. The Progressives took particular aim at constitutional protection of property, which they saw as an obstacle to their regulatory agenda. The political triumph of the New Deal in the 1930s fundamentally altered the constitutional landscape. New Deal constitutionalism fashioned a dichotomy between the rights of property owners and other claims of right, with property placed in a subordinate category to receive only cursory judicial review.
In sharp contrast, the Supreme Court, having given little attention to expressive freedom until the early twentieth century, rapidly elevated speech rights to the preeminent position in constitutional thought. But today many on the political left have grown disenchanted with free speech and the marketplace of ideas.
This article explores the long historical association between property and liberty, and considers why so many commentators perceived an intimate connection. It suggests three interconnected premises: 1) secure private property constrains the scope of governmental authority over individuals, 2) private property makes people autonomous and thus fosters self-government, and 3) private property promotes economic growth, creating a climate which in turn encourages the assertion of individual liberty.
The article concludes by speculating about the future course of private property and free speech in the United States.
Ely, James W, Liberty and Property: Indivisibility Linked? (February 2, 2022). Brigham-Kanner Property Rights Journal, volume 11; Vanderbilt Law Research Paper No 22-01.
First posted 2022-02-05 11:00:25
Leave a Reply