Property rights play a pivotal role in fashioning American constitutional order. The Guardian of Every Other Right: A Constitutional History of Property Rights, a definitive work by renowned legal historian and Vanderbilt professor of law and history James W. Ely Jr. that traces the historical relationship between private property ownership and political liberty, has just been released by Oxford University Press in a third edition to which Professor Ely has added new research.
“You can learn from a study of history how recognition and respect for the rights of private property owners can do a great deal to preserve liberty by limiting the reach of legitimate government,” said Professor Ely, who holds the Milton R. Underwood Chair in Free Enterprise at Vanderbilt.
“You can see this played out when you consider states that do not recognize private property, such as the former Soviet Union and satellite states in Eastern Europe,” said Professor Ely. “Consider further what has happened in Eastern Europe since the fall of communism. Every newly independent government in Eastern Europe is trying to restore some kind of private property. They do this in part because they hope private property will be an engine for economic growth. But they also recognize the historical link between private property and individual liberty.”
The Guardian of Every Other Right takes a comprehensive look at property rights from the colonial period to the present. In the newly released third edition, Professor Ely has updated the book to include recent developments on the federal and state levels regarding the rights of property owners, such as a well-publicized 2005 case, Kelo v. the City of New London, which confirmed the city of New London, Connecticut’s right to seize property from individual homeowners under eminent domain for the purposes of commercial development. According to Professor Ely, the Supreme Court’s decision in the Kelo case “put [the Court’s] stamp of approval on the exercise of eminent domain for purposes of economic development by private parties.” The decision attracted so much attention because of its implications; the general public, Professor Ely said, suddenly realized that “my house could be taken for a vague development scheme which may or may not prove to be a success.”
To the framers of the Constitution, the preservation of individual property rights was a “bedrock principle,” one Professor Ely believes has been eroded in more recent decades. Much of the contemporary debate, he said, has turned on defining “public use” in cases of eminent domain and the extent of regulatory authority over private property.
“There has been a very significant broadening of the power to take property, if you simply talk in terms of a vague public purpose or public use,” Professor Ely said.
The Guardian of Every Other Right illuminates the role of private property in American society today by tracing the evolution of our laws governing private property. The book also explores questions relating to local, state and federal government’s role in taxing property, regulating the activities of privately owned enterprises, and redistributing assets or wealth from one segment of society to another.
– Amy Wolf, Vanderbilt Public Affairs, Posted 12-04-2007