The Nature of Property

The Constitution of the United States protects the owners of private property against deprivation of their property without due process of law as well as against a taking of their property except for “public use” and upon payment of “just compensation.” Yet the Constitution does not define “property,” and the Supreme Court has declared that the existence of property interests is usually determined by an independent source such as state law. In the nineteenth century, courts rarely sought to describe the nature of property and seemed to proceed on an implicit premise of what constituted property. Although some scholars have examined the idea of property (for example, Thomas Merrill, Adam Mossoff, and Laura Underkuffler¹), the field is largely uncharted.

In this interesting and challenging volume, Stuart Banner sets out to explore the fundamental question of what property is. He contends that thinking about property is constantly changing to serve instrumental goals. Indeed, Banner asserts “that our ideas about property have always been contested and have always been in flux” (p. 3). Land, for instance, can be physically possessed and has long been treated as a prime form of property. The rules governing land, however, have been anything but static. Even in the colonial era, Americans began to move away from English land law and viewed land as a commodity to be readily bought and sold. Thus, in short order after the Revolution, Americans abolished both primogeniture and entailed estates, rejected the doctrine of ancient lights, devised the notion of trade fixtures, and adopted more flexible concepts of nuisance. Moreover, the enactment of Married Women’s Property Acts beginning in the antebellum era, a subject not covered by Banner, abolished the common law disability of coverture. All of these developments facilitated commerce in land.

Banner takes a fresh look at the conception of property as a bundle of rights. Popularized during the Progressive era and widely proclaimed today, the bundle-of-rights metaphor is commonly viewed as undermining the notion of property and opening the door for greater governmental regulation of property. Banner points out, however, that the concept of property as a collection of rights, such as the right to use and the right to maintain exclusive possession, was well recognized in the nineteenth century. In 1888, treatise writer John Lewis remarked that “the dullest individual among the people knows and understands that his property in anything is a bundle of rights.”² In short, property was more than mere title. This understanding of property had a profound implication for the scope of the constitutional protection afforded the rights of property owners. It led, for example, to an expanded reading of the interests secured by the due process and takings clauses. Governmental action that diminished any of the rights associated with ownership could be challenged on constitutional grounds. This was clearly illustrated in the railroad-rate cases of the late nineteenth century, arising from state-imposed controls on railroad charges. Property, the Supreme Court ruled, was not limited to the physical assets of railroad companies but encompassed the right to earn a reasonable profit. “In the late nineteenth century,” Banner cogently observes, “the idea of property as a bundle of rights was a distinctly antiregulatory idea, one that served the specific purpose of justifying constitutional doctrines that would limit the power of legislatures to regulate in ways that would reduce the power of property” (p. 71). The seeds of the regulatory takings doctrine were planted long before the seminal decision in Pennsylvania Coal Co. v. Mahon (1922).

Notwithstanding these developments, property rights lost much of their high constitutional standing during the twentieth century. Traditionally, the start of this shift has been attributed to the Progressive movement, with its disdain for claims of individual rights and call for greater governmental intervention in the economy. In contrast, Banner focuses on significant changes in how people thought about property. He places emphasis on the decline of the once-prevalent opinion that property was a...