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'Property' in the Constitution: The View from the Third Amendment

Tom W. Bell

Chapman University, The Dale E. Fowler School of Law

October 15, 2011

William & Mary Bill of Rights, Vol. 20, 2012
Chapman University Law Research Paper No. 11-29

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.

Number of Pages in PDF File: 34

Keywords: Third Amendment, quartering, property, Takings Clause, takings, property, constitution

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Date posted: October 16, 2011 ; Last revised: August 18, 2012

Suggested Citation

Bell, Tom W., 'Property' in the Constitution: The View from the Third Amendment (October 15, 2011). William & Mary Bill of Rights, Vol. 20, 2012; Chapman University Law Research Paper No. 11-29. Available at SSRN: http://ssrn.com/abstract=1944647

Contact Information

Tom W. Bell (Contact Author)
Chapman University, The Dale E. Fowler School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
714-628-2503 (Phone)
714-628-2576 (Fax)
HOME PAGE: http://www.tomwbell.com

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