Is the Right to Private Property a Fundamental or an Economic Right?

Abstract

Our common law history and the provisions of the U.S. Constitution strongly suggest that private property rights are fundamental rights. As such, some sort of deep and broad societal consensus would seem to be required for change in the character of this fundamental right, and it is necessary and proper that the impositions on those rights that we permit to be exercised by the sovereign power residing in the people be strictly limited.

This article defines fundamental and economic rights, looks at their differences, and examines whether eminent domain power is a fundamental right. A brief legal history of Anglo-American private property law is given, covering ancient Britain, Roman Britain, Anglo-Saxon England, England after the Norman Conquest and during the Middle Ages, and in the British North American colonies. This history shows that private property rights were considered as fundamental, even foundational, elements of the common law and by the founders of the U.S. Constitution. Four contemporary threats to the fundamental nature of private property rights are then highlighted, in the areas of eminent domain, regulatory takings, public trust doctrine, and discrimination laws. The author concludes with examples of the difference it would make - and the need for this difference - in these areas to treat private property rights as fundamental rights.

Keywords: Legal history, American property law, English land law, Fifth Amendment, takings, eminent domain, regulatory takings, public trust doctrine, discrimination, public use, private property rights, economic rights, fundamental rights