For almost a decade now, the executive branch of the United States government has gone to court to oppose property ownership. In cases involving federal flooding of private property, administrative review of wetlands designations, and expropriation of crops for federal reserves, the Obama administration repeatedly contended that property owners have no grounds for complaint when a government chooses winners and losers for its own purposes. No surprise there. More surprising, perhaps, is that the Trump administration seems to have taken up where its predecessor left off. In a filing at the Supreme Court of the United States in the case Oil States Energy Services v. Greene’s Energy Group, the acting Solicitor General recently argued that previously-issued patents are not property, only grants of monopoly privileges from government.
The implications of these cases reach beyond farmers and patent holders. At stake is whether you own your property as a matter of right or only insofar as the government says so. A convention has taken hold in elite academic and political circles which portrays property rights as mere concessions of privilege from the sovereign ruler. The convention comes with its own bogeyman: Property’s defenders are supposed to be radical individualists who adhere dogmatically to an abstract, individual freedom which trumps the public good.
This convention departs radically from the American tradition of property ownership, which teaches that property rights arise from pre-political obligations that bind citizens and government alike. Taken together, those rights and obligations ground and secure both political rights (consider, for example, that the Civil Rights movement was planned largely in privately-owned homes and churches) and those rights known in our tradition as “fundamental,” such as the rights declared and codified in the Third, Fourth, and Fifth Amendments.
To preserve and nourish our rights and liberties we must understand their source and development. Our property norms and institutions grow out of the common law that we Americans inherited and claimed as birthright at the Founding. In common law, property is not subject to alteration and abrogation by political action at will. Though privileges conferred by positive law are known in common law, most of the rights and duties of property are pre-political. They result from the judgments of human beings as they build the lives and customs of their families, businesses, religious assemblies, and other communities of which they are part. Nor is property a trump card that individuals play against the public good. Though much personal property is owned by individuals, most significant assets are owned and stewarded by groups and associations that coordinate their productive actions for a common good. Indeed, our property is inherently social in orientation.
Common law jurists have long called property by its Judeo-Christian name, “dominion.” Dominion is a means of ordering, creating, and ultimately of becoming governors of some part of the world that is entrusted to our care for a time. Dominion is exercised within communities—local and political—and by communities themselves—those groups and associations that comprise civil society. As they coordinate their actions toward a shared good, those within the domain of property ownership determine their own rights and duties without the expertise or power of a sovereign government. For example, within a family, parents decide how to allocate resources, who gets to use the car when, which children may participate in which extra-curricular activities, and so forth. All exercises of dominion have moral significance, no matter how mundane, because every use of resources is either in favor of, or opposed to, some person’s good (or both at the same time). Dominion is both moral and practical. In short, the office of dominion is perfectly suited to human beings. Common law jurists have long observed that, according to Hebrew scripture, God created Adam and Eve to fill it.
Property law contains some moral duties. Two are foundational. First, one must not take or possess what belongs to another, and second, one must not exclude from one’s own resources another person motivated by a strict necessity to save a human life. The prohibition against trespass and the necessity exception to it have the authority of law not because human beings posited them but rather because human beings are human. To these natural laws, the common law added the prohibition against owning another human being. Slavery, being contrary to reason, could not claim the authority of common law. In America, slavery depended entirely upon positive laws of particular colonies and it was limited within their jurisdictional reach. American courts appealed to these ancient requirements of natural reason when refusing to compensate slave owners after ratification of the Thirteenth Amendment.
Notice that these are duties of abstention—duties not to trespass, not to thwart one who is trying to save a life, not to enslave. With respect to affirmative duties—duties that correlate with what are today called “positive” rights—the common law itself is indifferent. It leaves to plural domains the job of specifying particular rights and duties between persons and within communities. People settle their own domains as they sign leases, open and enter restaurants and churches, drop off their dry cleaning, and transact other business. The people themselves are in the best position to know what actions will best conduce to their common good.
Americans are also practical; at times to excess (as with the case of slavery). From the beginning American jurists chafed at aspects of English common law that struck us as ill-suited to our own problems. States limited legislative sovereignty to secure vested private rights against retrospective change. We rejected the English doctrine of primogeniture, by which the inheritance passed to the eldest son. We abolished forfeiture of personal property, the punishment imposed on a suicide, on the ground that it effectively punished his family, who already had suffered enough. And American lawyers set aside many of the formalities governing conveyances of estates and interests in land, choosing instead rules that honor the grantor’s intent.
The moral and the practical come together in dominion. The presumption of liberty animates and constitutes the core of property. Meanwhile, a plurality of institutions share authority to mark relative boundaries of property’s many domains. Those boundaries are settled by natural reason, ancient usages, conveyances, gifts, promises, civil juries, and the other acts and institutions by which people come to owe particular duties toward other people.
Statist accounts of property came to dominate legal education and practice in the twentieth century. To construct their planned utopias, statists infringed dominion. But they have not found a coherent legal basis for doing so. For example, the U.S. Supreme Court struggled to identify a workable baseline for assessing when a regulation of land use amounts to a taking of private property for which government must pay just compensation under the Fifth Amendment. All of the Court’s various balancing tests have proven arbitrary and unclear. Then, in the 1992 case Lucas v. South Carolina Coastal Council, Justice Scalia located a workable baseline in the common law; a regulation is a taking when it adds new duties to the common law of wrongs. And in its 2015 decision in Horne v. Department of Agriculture, ruling that personal property is property for constitutional purposes, the Court observed that taking personal property has always been a compensable wrong going “back at least 800 years to Magna Carta.”
Patents are not exactly the same as titles in land or personal possessions. But early on, American jurisprudence accepted valid patents as vested property rights which enable investors, innovators, and producers of goods to cooperate for the common good. The Court’s decision in Oil States might signal how much purchase property retains on American jurisprudence.
Many Americans seem to understand today that our rights and liberties are in peril. But we see little consensus around possible solutions. This is an opportunity for conservatives to remind our fellow Americans about the rights and duties of property. The common law tradition of property ownership promotes the common good because it is well suited to human beings. If we want to preserve the ordered liberty of human beings then we must first recall what brought it into being.
Adam J. MacLeod is Professor of Law at Faulkner University, Jones School of Law and Thomas Edison Fellow in the Center for the Protection of Intellectual Property at George Mason University. He is the author of Property and Practical Reason (2015) and co-editor of Foundations of Law (2017).