Vol. 2 No. 2 (February, 1992) pp. 35-37

THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS by James W. Ely, Jr. New York: Oxford Universi- ty Press, 1992. 193 pp. Cloth $32.50. Paper $10.95.

Reviewed by David Schultz, Department of Political Science, Trinity University.

Ely's book is part of Oxford University's bicentennial essays on the Bill of Rights and it offers opportune reconsidera- tion of the constitutional status of property rights in America at a time when property rights are yet again receiving serious reconsideration by the Supreme Court.

This book offers a good short history of "economic and property rights from the settlement of America to the present" (p. 9). The author argues three propositions that provide the analytical framework for the book. First, that the Founders envisioned some type of judicial protection of property rights. Second, that the relegation of property rights to a secondary status is not warranted and that the Framers did not intend to distinguish property and personal rights in the way the Post CAROLENE Products (1938) Court apparently does. Third, that the Framers understood that property rights were not absolute and that they would need to be limited in some way.

Additionally, two other conclusions emerge out of Ely's book. First, that while the Constitution and the judiciary do value property rights, the exact type of property favored at a particular time in history is influenced by a variety of politi- cal-economic factors. Second, that the Court may yet again place more emphasis upon property rights, but not to the degree that it did prior to the New Deal.

In using the first three points to frame the book, Ely first provides a brief introduction to the influence of British proper- ty rights discourse upon colonial America. Ely notes the impor- tance of Locke and Blackstone upon the Founders and indicates how they saw property as an important political concept associated with individual liberty. Particularly interesting in this opening discussion is the claim that the Framers originally felt that property could be protected through the normal operations of the political process, but that the introduction of the Fifth Amendment and assumption of judicial review of economic claims meant that property was promoted to a substantive value that deserved special institutional protection beyond the normal political means.

Thus, after setting the intellectual background, the author does a solid job in discussing how the contract, the 14th Amend- ment due process, and the Fifth Amendment eminent domain Clauses ("...nor shall private property be taken for public use without just compensation") were subsequently appealed to at various

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times in American history to protect property rights. Ely reviews the Marshall Court's expansive use of the Contract Clause to protect property interests and also discusses Justice Field's dissent in the SLAUGHTERHOUSE CASES to show how it became the precedent for subsequent liberty of contract and substantive due process adjudication.

The book also offers a good discussion of the growing importance of the Fifth Amendment eminent domain clause. Ely is correct to note that it has become the last major constitutional provision used to protect property, and he also addresses briefly how conservatives such as Richard Epstein and Stephen Macedo have sought to reinvigorate property rights claims in it and in the process limit the regulatory functions of the state.

Finally, the book provides an overview of the constitutional status of property rights since 1938. In this discussion Ely reminds the reader that despite the secondary status given to property, the Court, most notably in Justice Stewart's 1973 opinion in LYNCH V. HOUSEHOLD FINANCE, has be uncomfortable in completely distinguishing property from personal rights and that there is a connection between the two.

There is clearly much to commend in this book, especially in its attempt to provide a short review of an important subject. However, this book is not intended to be an exhaustive or highly original discussion of property rights and the Constitution. This book, as with the other books in this Cambridge Series, are meant to be introductory monographs on a particular Bill of Rights subject. This book is more suited to undergraduates, general audiences, and those lacking a background in this area. However, serious property rights scholars will find the book helpful, but not original.

Given the limited scope of the book, many criticisms about what the book has omitted are ill-placed; however, there are a few criticisms worth noting.

First, while Ely generally provides a good discussion of the intellectual background on American views on property, he glosses over the differences between Locke and Blackstone. While Black- stone certainly was influenced by the former, Blackstone's approach to property provided the judiciary with legal arguments to buttress its property rights decisions. Noting how Blackstone appreciated the legal limits on property could explain why or how property was open to more control than otherwise thought. Noting their differences would also support Ely's claim that the Found- ers did not envision property claims as absolute because Black- stone provides support for ways to limit property rights.

Second, absent from this discussion is James Harrington and the republican tradition that associated property with power, individual liberty, and popular government. The republican tradition was an important

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influence on the Founders and this tradition could help to explain much of the subsequent property rights discourse in America and provide a stronger framing of how property in America has come to be associated with liberty, power, and popular government.

Another area where the book is lacking is in assessing the future of Supreme Court property rights adjudication. While Ely does not see the Court returning to a pre-New Deal property rights jurisprudence, he underestimates the support property rights and substantive due process has on the Court. Scalia, especially in NOLLAN V. CALIFORNIA COASTAL COMMISSION, seemed prepared to reinvigorate heightened scrutiny for some property regulation. This 1987 case, along with FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH V. COUNTY OF LOS ANGELES and the dissents in KEYSTONE BITUMINOUS COAL ASSOCIATION V. DEBENEDICTIS in the same year are all indications that a conservative Court is becoming more supportive of property rights and is willing to invoke the Fifth Amendment and the Contract Clause to limit property regula- tion.

Finally, while perhaps beyond the scope of the book, Ely could have used his conclusion to better place property rights adjudication within the larger content of judicial treatment of property and personal rights. More attention could have been devoted to noting increased judicial support of property rights at a time when support for personal civil rights was decreasing. Speculating on this matter could have raised more suggestive questions about the property/personal rights dichotomy in the Constitution, and it could have made a fine book even more prophetic on the status of property rights in the 1990s.