Omar Bennett
The U.S. Constitution does not explicitly mention privacy, but it does protect property rights. Initially, the common law upon which the U.S. Constitution is based only protected property rights. However, during the 1880s, legal scholars began to theorise that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy. The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal, but the field of constitutional property is now one of the most controversial in constitutional law.
| Characteristics | Values |
|---|---|
| Does the Constitution protect private property? | Yes, but the interpretation of these rights has changed over time |
| When was private property most protected? | Between the Civil War and the New Deal |
| When was private property least protected? | During the New Deal |
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What You'll Learn
The Supreme Court's protection of property rights between the Civil War and the New Deal
The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal. During this period, the Court protected property via the Due Process Clauses in the Fifth and Fourteenth Amendments.
The Due Process Clauses were enforced through the same substantive due process doctrines as in the 1905 decision Lochner v. New York. However, substantive due process was repudiated during the New Deal for several reasons, including the belief of New Deal lawyers and scholars that it had no basis in the text of the Constitution.
Constitutional property was regarded as a disreputable field for a couple of generations after the New Deal. Today, it is one of the most controversial fields of constitutional law.
The interpretation of the Bill of Rights has varied over time, and the U.S. Supreme Court has made several controversial decisions regarding property rights. For example, in Kelo v. New London, the Court held that the phrase "public use" in the Fifth Amendment's Takings Clause does not prevent a state or local government from condemning property owned by one private party and transferring it to another to promote economic development.
The common law upon which the U.S. Constitution, state constitutions, and state laws are based initially only protected property rights. However, during the 1880s, legal scholars began to theorise that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy. This concept was elaborated on by Boston lawyers Samuel D. Warren and Louis D. Brandeis in their 1890 article "The Right to Privacy" in the Harvard Law Review.
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The Fifth Amendment's Takings Clause
The Supreme Court has protected property rights vigorously in the past, particularly between the Civil War and the New Deal. During this period, the Court protected property via the Due Process Clauses in the Fifth and Fourteenth Amendments. The Fifth Amendment's Takings Clause was also central to the Kelo v. New London case, in which the U.S. Supreme Court held that the phrase "public use" does not prevent a state or local government from transferring property from one private party to another to promote economic development. This decision has been heavily criticised.
The interpretation of property rights has evolved over time. Initially, the common law upon which the U.S. Constitution is based only protected property rights. However, in the 1880s, legal scholars began to argue that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy. This concept was elaborated on by Boston lawyers Samuel D. Warren and Louis D. Brandeis in their 1890 article "The Right to Privacy".
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The Fourteenth Amendment's Due Process Clause
The Due Process Clause of the Fourteenth Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law". This clause has been interpreted to protect private property rights, including the right to be free from unreasonable searches and seizures by the government.
The interpretation of the Due Process Clause has evolved over time. During the 1880s, legal scholars began to argue that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy. This led to the development of a constitutional right to privacy, which was elaborated on by Boston lawyers Samuel D. Warren and Louis D. Brandeis in their 1890 article "The Right to Privacy".
The Supreme Court's interpretation of the Due Process Clause has also changed over time. In the 2005 decision Kelo v. New London, the Court held that the phrase "public use" in the Fifth Amendment's Takings Clause does not prevent a state or local government from condemning property owned by one private party and transferring it to another to promote economic development. This decision was highly controversial and may be the most criticised Supreme Court case in the last 30 years.
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The First Amendment's protection of privacy
The U.S. Constitution does protect private property, but the interpretation of these protections has varied over time. Between the Civil War and the New Deal, the Supreme Court protected property rights relatively vigorously via the Due Process Clauses in the Fifth and Fourteenth Amendments. However, substantive due process was repudiated during the New Deal, as lawyers and scholars believed it had no basis in the text of the Constitution.
The First Amendment does not explicitly mention privacy, but Justice Louis D. Brandeis stated in his dissent in Gilbert v. Minnesota (1920) that it protected the privacy of the home. Legal scholars have also theorised that the common law of torts, which involves injuries to private persons or property, protects against government invasion of privacy. This concept was elaborated on by Boston lawyers Samuel D. Warren and Louis D. Brandeis (a former Harvard Law School classmate of Judge Cooley) in their 1890 article in the Harvard Law Review, "The Right to Privacy".
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The Bill of Rights' interpretation of property rights
The Bill of Rights offers protections for property rights, but their interpretation has varied over time.
Initially, the common law upon which the U.S. Constitution, state constitutions, and state laws are based, protected only property rights. During the 1880s, legal scholars began to theorise that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy. In the late 1880s, Judge Thomas Cooley wrote in *A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract* that people had a right to be 'let alone'. This concept was elaborated on by Boston lawyers Samuel D. Warren and Louis D. Brandeis in their 1890 article in the *Harvard Law Review*, 'The Right to Privacy'.
Between the Civil War and the New Deal, the Supreme Court protected property rights relatively vigorously via the Due Process Clauses in the Fifth and Fourteenth Amendments. However, substantive due process was repudiated during the New Deal, as New Deal lawyers and scholars believed that it had no basis in the text of the Constitution.
In its 2005 decision in *Kelo v. New London*, the U.S. Supreme Court held that the phrase 'public use' in the Fifth Amendment's Takings Clause does not stop a state or local government from condemning property owned by one private party and then transferring that property to another party to promote economic development consistent with a development plan.
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Frequently asked questions
Yes, the US Constitution protects private property. The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal.
The Supreme Court protected property via the Due Process Clauses in the Fifth and Fourteenth Amendment.
The Bill of Rights offers protections, but their interpretation has varied over time.
The common law of torts involves injuries to private persons or property, and also protects against government invasion of privacy.
