Research News

Respect for private property strongly tied to civil liberty; Vanderbilt professor explains new federal developments impacting property rights

[Media Note: Vanderbilt has a studio with a dedicated fiber optic line for TV interviews and a radio ISDN line. A high resolution photo of James Ely Jr. is available here.]

Property rights play a pivotal role in fashioning American constitutional order. New research by renowned legal historian and Vanderbilt professor of law and history James W. Ely Jr. traces the historical relationship between private property ownership and political liberty.

“You can learn from a study of history how recognition and respect for the rights of private property owners can do a great deal to preserve liberty by limiting the reach of legitimate government,” said Ely, author of The Guardian of Every Other Right: A Constitutional History of Property Rights and the Milton R. Underwood Chair in Free Enterprise at Vanderbilt.

“I think you can see this played out when you consider states that do not recognize private property, such as the former Soviet Union and satellite states in Eastern Europe,” said Ely. “Consider further what has happened in Eastern Europe since the fall of communism. Every newly independent government in Eastern Europe is trying to restore some kind of private property. They do this in part because they hope private property will be an engine for economic growth. But they also recognize the historical link between private property and individual liberty.”

The Guardian of Every Other Right, now in its third edition from Oxford University Press, takes a comprehensive look at property rights from the colonial period to the present. It has been updated to take into account recent developments on the federal and state levels regarding the rights of property owners, such as a 2005 case, Kelo v. the City of New London, which would seem to greatly diminish the rights of property owners. Ely said the Supreme Court in that case, “put its stamp of approval on the exercise of eminent domain for purposes of economic development by private parties.” Ely said after that case the general public began to realize, “my house could be taken for a vague development scheme which may or may not prove to be a success.”

To the framers of the Constitution, the preservation of individual property rights was a “bedrock principle,” one that has been eroded in more recent decades. Ely said that much of the contemporary debate has turned on defining “public use” in cases of eminent domain and the extent of regulatory authority over private property.

“There has been a very significant broadening of the power to take property, if you simply talk in terms of a vague public purpose or public use,” said Ely.

The book seeks to provide background so that the reader can better assess the role of private property in American society today. It also explores questions relating to local, state and federal government’s role in taxing property, regulating the activities of privately owned enterprises and redistributing assets or wealth from one segment of society to another.

Media Contact: Amy Wolf, 615-322-2706