Property Rights: From Magna Carta to the Fourteenth Amendment

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Transaction Publishers, 2001 - Law - 329 pages

Property Rights: From Magna Carta to the Fourteenth Amendment breaks new ground in our understanding of the genesis of property rights in the United States. According to the standard interpretation, echoed by as lofty an authority as Supreme Court Justice Harry Blackmun, the courts did little in the way of protecting property rights in the early years of our nation. Not only does Siegan find this accepted teaching erroneous, but he finds post-Colonial jurisprudence to be firmly rooted in English common law and the writings of its most revered interpreters.

Siegan conducts an exhaustive examination of property rights cases decided by state courts between the time of the ratification of the U.S. Constitution in 1788 and the adoption of the Fourteenth Amendment in 1868. This inventory, which in its sweep captures scores of cases overlooked by previous commentators on the history of property rights, reveals that the protection of these rights is neither a relatively new phenomenon nor a heritage with precarious pedigree. These court cases, as well as early state constitutions, consistently and repeatedly embraced key elements of a property rights jurisprudence, such as protection of the privileges and immunities of citizens, due process of law, equal protection under the law, and prohibitions on the taking of property without just compensation. Case law provides overwhelming evidence that the American legal system, from its inception, has held property rights and their protection in the highest regard.

The American Revolution, Siegan reminds us, was fought largely to affirm and protect private property rights-that is, to uphold the "rights of Englishmen"-even if it meant that the colonists would cease being Englishmen. John Locke and other great theoreticians of property rights understood their importance, not only to individuals who happened to possess property, but to the preservation of a free society and to the prosperity of its inhabitants. Siegan's contribution to this venerable tradition lies in his faithful reconstruction of our legal history, which allows us to see just how central property rights have been to the American experiment in liberty-from the very beginning.

 

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Contents

Introduction
1
The Rights of Englishmen
5
I The Magna Carta
6
II Lord Coke and His Interpretation of the Magna Carta
12
III Cokes Judicial Record
19
IV Blackstone and the Common Law
29
V John Lockes Influence on American Constitutionalism
46
VI The Colonies Protect Rights
50
Judicial Interpretations of Property Rights Prior to the Fourteenth Amendment
121
II State Decisions
123
III Justice Blackmuns Dissent in the Lucas Case
180
IV Federal Cases
192
V Due Process and the Police Power
206
VI Observations about Due Process and Class Legislation
212
The Due Process Clause of the Fourteenth Amendment
219
II The Civil Rights Act of 1866
226

VII The Commercial Success of English America
53
VIII Rejecting Authoritarian Controls
55
IX Freedom versus Public Virtue
58
Interpreting the Constitution and the Bill of Rights
61
II The First American Constitution
64
III Framing the US Constitution
65
The Most Important and Influential Framer
74
V Madison and the Separation of Powers
83
VI Judicial Review
92
VII Constitutional Protection of Property Rights
99
VIII The Bill of Rights
102
IX The Due Process Clause
105
X The Takings Clause
108
XI Correctly Interpreting the Constitutions Private Property Guarantees
117
XII The Bill of Rights and Property Rights
118
III Binghams Early Version of Section 1
231
IV The Final Version of Section 1
235
The Privileges or Immunities Clause of the Fourteenth Amendment
243
II The Privileges and Immunities Clause of Article IV
246
III Congress Defines Privileges and Immunities
248
IV Paul v Virginia
258
V The Slaughterhouse Cases
261
VI Saenz v Roe
267
Beyond Property Rights
275
Concluding Remarks
283
Notes
289
Index
317
Index of Cases
325
About the Author
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