William & Mary Bill of Rights Journal


Tom W. Bell


During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term “property” means in the United States Constitution. As a general legal matter, property includes not just real estate—land, fixtures attached thereto, and related rights—but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Caselaw and commentary do not speak as plainly, however, raising troubling questions about what “property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property to a lesser extent than it does real property. The unjust treatment of Aleutian natives during World War II illustrates the risk of giving constitutional property so peculiar and narrow a definition. This Article describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “property” a plain, generous, and consistent meaning throughout Constitution.