Property as a Constitutional Right in the Nineteenth Century

The evolution of due process from an innocuous paraphrase of the old English concept “the law of the land” into a strong bastion of property rights until its curtailment in constitutional decisions in 1937 has been beautifully delineated in the writings of Edward Corwin. Later writers have concentrated largely on extrapolating that history to cover the metamorphosis of propertied liberty into personal rights, which has even required a modest revival of property protection. Still, Corwin has been amended on several key points. (1) We now understand that the nineteenth-century battle over property was not between property and persons, but between an older concept of “property as possession” and a dynamic capitalist view of “property as creation of social value.” (2) The transformation of “due process” in popular controversy, which Corwin was acute enough to advance as a factor, seems to have been the most decisive factor, particularly altering the debate on the Fourteenth Amendment. (3) Corwin's search for a transforming case representing a decisive conceptual change seems misplaced The complex economic-regulation due-process cases allowed a move from “procedure to substance” without any visible transformation of legal rules

Battle · Constitution · Constitutional right · Epistemology · Law and economics · Paraphrase · Political science · Possession (linguistics · Property (philosophy · Property law · Property rights · Sociology · History · Law · Legal principles and applications · Philosophy · Property Rights and Legal Doctrine