Person:

Michelman, Frank

A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values.

How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role.

This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).

I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.

Joseph Singer’s recent writings on regulation and takings turn my mind once again to questions I have broached previously in this Journal about the point of American constitutional protections for property. Immediately, then, my topic has to narrow down. Some constitutions elsewhere include clauses of so-called “institutional guarantee,” positively committing the state to the upkeep by its legal system of forms of institutional order we would recognize as private property, along with full and fair access by all to that order and its benefits. “Elsewhere,” I said, but not here. By widely accepted American legal wisdom, one does not look for such material in American constitutions. Rather, what we have in the property department, and all we typically have are what jurists call “negative” or “defensive” clauses, meaning protections for established asset titles against loss to restrictions and controls imposed by legislation, legal rulings, and other state actions.

This paper addresses the latest iteration by Joseph Fishkin and William Forbath of their project on the “Anti-Oligarchy Constitution,” sometimes also called by them the “Constitution of Opportunity.” Fishkin and Forbath seek a restoration to American constitutional debates of recognition of the pursuit of republican-compatible distributions of wealth, status, power, and opportunity as a committed guiding norm for the conduct of American government.

Professor Forbath (recalling words of Jedediah Purdy) has described the project as one that is more concerned with “growing tea” than “reading tea leaves.” Growing tea means working in public communicative channels where the Constitution figures symbolically and expressively in processes of public-will formation meant ultimately to drive our politics and the resulting policies in one or another direction. Reading tea leaves means trimming and shaping constitutional argument to responses anticipated from an expected judicial decider.

It seems the ambition to restore full constitutional dignity and force to claims regarding basic economic policies (contrary, it may seem, to the New Deal Settlement) must take into full account the presence of the Supreme Court as a leading player on the American constitutional stage. The authors’ perceptions of, and their reckonings with, the risks and opportunities presented by this fact form the topic of this essay. Some tea-leaf reading is involved.