Property and Economic Liberty as Civil Rights: The Magisterial History of James W. Ely, Jr
Kmiec, Douglas W., Vanderbilt Law Review
This formidable six-volume collection by respected Vanderbilt legal historian, James W. Ely, Jr., is a paean to property as a civil right. The argument of the volumes is made through selected essays by multiple authors, covering colonial time to the present day. It is property, Ely writes in the series introduction, that secures individual autonomy from government coercion, prevents an over-concentration of political authority generally, and encourages investment and economic development.1 Ely knows the main lesson of history is remembering. The vast literature on the institution of private property, until now, was not sufficiently culled, digested, and assembled, however, to permit this reflection. With an historian's thoughtful eye, and a property partisan's touch, Ely brings this literature into one place.
In the mind of the American framer, Ely writes or suggests through editorial inclusion, personal liberty and property rights were often one. Nevertheless, Ely contends that despite active judicial review of economic regulation prior to the New Deal, the Supreme Court never adopted a laissez-faire philosophy.2 Rather, the New Deal was a breach of a founding ideology that had successfully balanced the rights of private property owners against limited or restrained public need.3 Thereafter, the Court deferred to legislative judgments redistributing wealth, and it was not until the 1980s that blind confidence in regulatory direction receded and property again was-partially at least-understood as a necessary corollary to human freedom.4
Volume one explores property's meaning from the early republic through the Civil War. Much of this was summarized, as Ely himself notes, by Alexis de Tocqueville's observation that "[iln no other country in the world is the love of property keener or more alert than in the United States, and nowhere else does the majority display less inclination toward doctrines which in any way threaten the way property is owned."5 But the observation does not obscure Ely's candid acknowledgment that the rhetoric of property rights did not deny reasonable colonial government regulation. Yet, the recent interest in civic republicanism, Ely's editorial hand suggests, overstates the extent to which individual interests were sacrificed to the commons. In fact, Ely indicates, a more balanced account reveals that colonial regulation was "rudimentary," largely designed to prevent nuisance in a restrained common law sense.6 Increasing numbers of historical accounts thus reveal that "colonists generally favored payment of compensation when property was taken."7
Ely's evidence for our early republic's acknowledgment of the importance of property is dauntingly impressive. Rights to acquire and possess property were written into early state constitutions along with compensation requirements for takings, and "the sanctity of private property was central to the new American social and political order."8 This was clouded by Revolutionary War confiscations of loyalists, but as Ely documents, the 1787 constitutional convention saw the preservation of property as the principal means of securing limited government.9
The second volume moves the discussion from the Civil War to the late nineteenth century. A dominating feature of the era was interstate commerce and the emergence of the railroad industry. While both would economically unify a politically tattered nation, both would also pose new economic challenges. Awakening the fear of monopoly, the railroads would weaken the influence of earlier economic interests, especially those dependent upon agriculture. Such displacement gave rhetorical power to calls for more expansive state and local regulation, but it was exactly at the time states were placed under the federal yoke of the Fourteenth Amendment. Through this Amendment, a lasting counterpoint to regulation would emerge, and at times, even dominate. In particular, the Amendment inspired legal writing and theory that would employ due process and privilege and immunity terminology to protect railroad and industrial interests. …