Frank I. Michelman, Good Government, Core Liberties, and Constitutional Property: An Essay for Joe Singer, 5 Brigham-Kanner Property Rights Conference Journal, 27 (2016).
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.