Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. The Article begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property, and that while courts and commentators can validly invoke property in the context of legal entitlements to government benefits—so-called new property—they mistakenly believe the property at issue is the good a recipient has a right to receive, rather than the legal right to receive it. The Article shows that legal rights are the only category of things whose existence government can altogether extinguish. For this reason, ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination of both “new property” rights and old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence that constitutional doctrine currently lacks. It also sheds light on the essential characteristics of property rights as a general matter, in order to help theoreticians understand more clearly the core structures of property law.
101 California Law Review 277-326 (2013)
Stern, James Y., "Property's Constitution" (2013). Faculty Publications. 1527.