• Private property was at the core of the founders’ vision of a new society; it was critical in the Civil War, when a plantation-based, slave-owning South sought to defend its way of life; and it remains a foundation of the American understanding of what makes democracy work.

• The centrality of private property in the Constitutional structure became evident when the framers redrafted the famous line in the Declaration of Independence that all men “are endowed with certain unalienable rights, among them life, liberty, and the pursuit of happiness.” In the prior draft, the right to pursue happiness had been a right of property.

• When the Bill of Rights was adopted in 1791, the critical trilogy of American law became “life, liberty, and property.” The right to private property took the place of the “pursuit of happiness” in the American commitment to basic human rights.

  • To quote the relevant portions of the Fifth Amendment: “No person . . . shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

  • The same principle is made applicable to the states in the Fourteenth Amendment: “[N]or shall any State deprive any person of life, liberty, or Property, without due Process of law.”

  • Both in the Fifth and the Fourteenth Amendments, the right to private property is placed on a plane equal to life and liberty.

  • The articles then, in conformity with the American Fifth Amendment, protect property owners against the state’s taking property without just compensation.

  • One thing that is intriguing about all these provisions, however, is that they do not distinguish between real property and chattels, immovables and movables.

• The commitment to the importance of private property expresses a certain conception of how democracy could take hold and flourish.

• Private property provides a basis for individuals to act independently of the state. If they are secure in their homes and their income from their lands, they can challenge the government and hold it properly accountable.

• In the American view, then, private property in land is part of an ensemble of rights that serve to strengthen the democratic independence of citizens.

  • Under this distinctively American view, the process of promoting freedom and democracy requires opposition to the state.

• Private property in land represents an opposition to the state because the ownership of land means that private individuals occupy space in much the same way a sovereign claims to rule a specific national territory.

  • For these purposes, the critical feature of property is that it is property in land. Communist societies permitted the private ownership of cars and other movables. In feudal England, peasants owned their livestock and their personal effects.

  • Only the ownership of land threatens the dominance of the state.

  • The alternative view is that one need not oppose the state in order to promote freedom and democracy. The state can be a partner in these ventures, and indeed many Continental Europeans think of the state in this way.

• The law of real property began in England as a system for maintaining the authority and power of the king and nobility. In the New World, the ownership of land became a symbol of democratic independence from the state.

• In the United States, the primary threat to private property is not the federal government but state and local governments.

Limiting Other People’s Use of Land

• The common law also gives landholders two quite powerful tools—trespass and nuisance—for regulating their neighbors’ conduct that affects their land.

• Trespass is an action brought by a landholder for another person’s entry on the land without a license to do so.

• A landholder’s right to exclude is not absolute, and certain state officers, such as sheriffs, firefighters, police, and the like, cannot be trespassers when carrying out their duties.

• The trespass need not occur in person but by animal or chattel, so that the neighbor’s dog in the garden is a trespass by the neighbor, as is the bullet from the neighbor’s rifle, fired across the property at a target on the other side.

• Nuisance is an action for the use of another’s land in a manner that harms one’s own. It does not require a physical presence on the land that is harmed.

• The difficulty would be proving damages, but this can often be established if one can prove that the resale value of one’s property is diminished or if the cost of buying an easement to allow the nuisance would have been significant.