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53 “ New Property Rights Debates The Dialectics of Naming, Blaming, and Claiming sarah pralle and michael w. mccann I n no other country in the world is the love of property keener or more alert than in the United States,” observed the French writer Alexis de Tocqueville more than a century and a half ago. “Everyone ,” he added, “having some possession to defend, recognizes the right to property in principle.”1 Indeed, he contended that it was this ubiquitous commitment to property that most distinguished the emerging “democratic ” order from the older aristocratic society whose passing he lamented. In other words, the ideal of property represented a sort of defining metaphor at the heart of the American political tradition. From the start, the idea of property has been intimately related to expressed aspirations for the cognate ideals of individual liberty, limited government, republican virtue, and distributive justice that have animated American public life. This common commitment to the principle of property, however, has rarely secured consensus on any particular construction of the concept itself . It is hardly an exaggeration to claim that virtually every period of substantial political debate and struggle in the United States since colonial days has been shaped by and expressive of rival conceptions of property. To be sure, such antagonisms have turned in large part on different material interests at stake. The diverse social positions of various key actors in the larger socioeconomic order clearly have been important in each debate . But political struggles have also involved deep differences in understandings about the very meaning of property, the complex structures of sarah pralle and michael w. mc cann 54 rules and entitlements that particular conceptions of property entail, and the very ways of life for “virtuous” citizens that those commitments to property have expressed. In short, the language of property in the American legal and political tradition has constituted a pervasively “contested terrain.” A brief review of the country’s history illustrates the point.2 constitutional property rights in historical perspective This abridged constitutional chronicle begins with the founding figures at the constitutional convention. Virtually all of the participants agreed with James Madison that “the first object of government . . . [is] the protection of the different and unequal faculties of acquiring property.”3 But this consensus on the commitment to property was matched by keen disagreement about what property required for its maintenance and the forms of social life that it secured. Many visions on the subject of property were excluded from the Philadelphia convention; among those who were permitted voice, differences of opinion were numerous and substantial. Madison represented the pragmatic middle position: balancing property rights and political rights secured by a strong, expansionist federal government . To the right were the unabashedly elitist advocates of antimajoritarian class dominance, such as Gouverneur Morris. To the left were the more democratic elements, led by such figures as James Wilson, who closely linked property ownership to the possibilities of self-governing republican communities. These different representatives thus articulated not only different principles of government organization to protect and advance property, but also quite novel visions of what a property-based society might look like, become, and mean in practice.4 Most of the nation’s subsequent history involved struggles over, and changes in, the basic legal structures, entitlements, and meanings of those rights to property secured by the Constitution. In particular, the early nineteenth century witnessed increasing conflicts as small-scale agrarian interests were overridden by the interests, position, and ideals of dynamic corporate, industrial, and speculative property advocates. As the great legal historian J. Willard Hurst summarized, “The bulk of nineteenth century cases which develop vested rights doctrine” were committed to “dynamic rather than static property, property in motion or at risk rather New Property Rights Debates 55 than property secure and at rest.”5 Cultural struggles over these different conceptions of property dominated politics in the first half of the century, as individuals and emerging corporate groups sought to wrest control from the residual aristocratic elements of civil society and the state. These conflicts dovetailed with and were absorbed into the divisive constitutional battle between North and South, which essentially were two different cultures grounded in very different sociolegal conceptions of property: “free” (or alienated) and slave. The North’s eventual victory represented the triumph of one proprietarian tradition over another, as well as a reaffirmation of property ideals in general. In defending free soil and free labor, Abraham Lincoln proclaimed, “Property is the fruit of labor...

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