The Constitutional Meaning of “Property” and the Rule of Law

Although the U.S. Constitution uses “Property” four times, it nowhere defines the term. What does it mean? I’ve been grappling with that question this summer, and been surprised to find commentators and cases arguing that “Property” counts as different things in different places. On some accounts, for instance, the word means only land in Article IV, § 3, general common law property in the Takings Clause, and all that plus welfare entitlements in the Fourteenth Amendment’s Due Process Clause.

Giving constitutional property so many different definitions threatens the rule of law. An average citizen, using ordinary English, would not likely read “Property” to stand for something different each time the word appears in the Constitution. Yet both leading theories of constitutional interpretation—originalism and “living” constitutionalism—invite that sort of confusion. Both theories avow that the meaning of "Property" or another constitutional term can change from place to place because of historical accidents (in the case of the former) or Supreme Court decisions (in the case of the latter).

I thank my friend and fellow law prof, Eugene Volokh, for discussing some of these matters in an extended email exchange. He recently quoted some of his thoughts about how constitutional words—he uses “Place” and “Law” as examples—can change depending on context. He makes sound observations. In fact, I'll go Eugene’s examples one better. Consider the word, "it," which means "House" in Art. § 5, "Bill" in Art. I, § 7, cl. 2, "Writ of Habeas Corpus" in Art. I, § 9, cl. 2, "State" in Art. I, § 10, cl. 2, and so forth.

We should expect such semantic flux if, as Eugene rightly says, the Constitution is written in ordinary English. Query, though, whether the four appearances of "Property" in the Constitution appear in contexts that give it four (or even, on one accounting, five!) distinct meanings. I think not, though I remain open to persuasion otherwise.

Eugene's observations do nothing to save originalism or living constitutionalism from the charge that they offend the rule of law, however. The rule of law does not suffer if we read words in their constitutional context because ordinary speakers of ordinary English can figure out that “it” means "House" in one place and "Writ of Habeas Corpus" in another. But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that “Property” includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.

How do we fix this problem with both originalism and living constitutionalism? By rejecting those theories for one that gives the Constitution’s text its plain, present, public meaning. For more, see my paper, Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010), a slightly revised version of the download-ready, Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF format].

Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations. People today, using ordinary English, almost certainly regard public flogging as unconstitutionally cruel and unusual punishment. In contrast, Justice Scalia has argued that an originalist (such as himself) should (and does) regard public flogging not as unconstitutional but simply, "stupid." That he can offer so tepid a criticism of something almost any citizen would regard as beyond the pale demonstrates the salient gap between an originalist approach and a consent-based one. (Living constitutionalism's abuse of ordinary English makes it susceptible to a similar critique.)