The Unalienable Right of Property:
Its Foundation, Erosion and Restoration

by Richard A. Huenefeld

II.   The Gradual Demise of the Unalienable Right of Property

A.   The Nineteenth-Century Debate
B.   Functional Thinking and Legal Education
C.   From Theory to Political and Legal Effects

Historically, the established foundation of unalienable property rights has not been articulated carefully or defended consistently. Therefore, a gradual demise of property rights has occurred since the latter portion of the eighteenth century. The first stage was the early nineteenth-century failure to resolve the question of the origin and nature of property rights. During the second stage, advocates of state power and efficiency resurrected feudalistic principles and fostered them through legal education. The third stage saw developments in the political arena consisting of progressive expansion of state control over property.


A debate has continued for centuries concerning the origin and nature of property rights. Some writers affirm that the source of property rights are the laws of nature and of nature’s God. Others have written that all property is a product of civil power. While the debate has never been settled in the numerous volumes of literature, the Declaration of Independence settled the matter for the United States. The Declaration of Independence affirms unalienable rights derived from the laws of nature and of nature’s God. Support for this position is found in the writings of American legal scholars Henry St. George Tucker, James Wilson and James Kent.

1.   Henry St. George Tucker

St. George Tucker’s edition of Blackstone’s Commentaries contains numerous references to the Constitution of the United States and appendices addressing the laws of Virginia and the federal union. His notes indicate his position concerning property rights.

Blackstone’s text contains several comments concerning the right of inheritance. Within this context, Blackstone asserted that inheritance was a political establishment. Blackstone felt this to be the case because “the permanent right of property . . . was no natural, but merely a civil, right.”91 Tucker noted, “l cannot agree with the learned commentator, that the permanent right of property vested in the ancestor himself, (that is, for his life) is not a natural, but merely a civil right.”92 Tucker’s position was clearly distinctive: “[T]he notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all positive institutions and civilized refinements.”93 He recognized that “[i]f the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other’s property, as from attacking and assaulting each other’s person.”94

Tucker’s reasoning was consistent with the laws of nature and of nature’s God. Even if civil laws are repealed, the laws of nature and of nature’s God are eternally binding. This is so whether or not man chooses to recognize the fact. Therefore, Tucker rejected any notion that property rights were contingent upon society and civil laws. He recognized the inherent aspect of property rights.

2.   James Wilson

James Wilson was appointed to the United States Supreme Court in 1789. He participated in the drafting of both the Declaration of Independence and the Constitution of the United States. His knowledge of American liberties was summarized in a collection of his lectures.95 Wilson devoted one lecture to the history of property. He noted that “[t]he general property of man in animals, in the soil, and in the productions of the soil, is the immediate gift of the bountiful Creator of all.”96

From the premise that all property was a gift from God, Wilson argued that common ownership of property was contrary to the laws of nature. He used the evidence of the history of Virginia to note that the colonists made the mistake of forbidding and preventing private property. Because goods were kept in common, many people refrained from work because they knew that the rest of the public would be obligated to provide for them.97

The extent of injury fostered by common ownership was evidenced by the colony of New Plymouth. They also initiated common ownership of property, but it led to the near starvation of all inhabitants. The recognition of private property was allowed as a last resort. Soon, the initiative and pursuits of the inhabitants fostered development enough to avoid starvation and deprivation.98

Wilson affirmed that the right of property was inherent in the nature of men. He argued that such exclusive property fosters industry and multiplies products. “[T]he means of subsistence are secured and preserved, as well as multiplied . . . . Exclusive property prevents disorder, and promotes peace.”99

Wilson refused to accept the argument that property was merely a civil privilege. He recognized that property rights are inherent within man and dictated by the laws of nature and of nature’s God. This position surely influenced his work on the Declaration of Independence, the Constitution of the United States, and the Supreme Court of the United States.

3.   James Kent

James Kent addressed property by first rejecting any notion of man in a state of nature. “To suppose a state of man prior to the existence of any notions of separate property, when all things were common, and when men throughout the world lived without law or government, in innocence and simplicity, is a mere dream of the imagination.”100 Kent affirmed that the history and nature of man cannot be known apart from the book of Genesis. From that source it was clear to him that a “sense of property is inherent in the human breast . . . . Man was fitted and intended by the author of his being for society and government, and for the acquisition and enjoyment of property. It is, to speak correctly, the law of his nature . . .”101

Kent affirmed dependence upon the laws of nature and of nature’s God. Property rights existed prior to social laws or institutions of property. Kent affirmed dependence upon the law of nature and claimed that the first title to property was acquired by occupancy. “The right of property, founded on occupancy, is suggested to the human mind by feeling and reason prior to the influence of positive institutions.”102

Kent also illustrated his concern over civil encroachment. He pointed out that in the United States

the right to acquire, to hold, to enjoy, to alien, to devise, and to transmit property by inheritance, to one’s descendants, in regular order and succession, is enjoyed in the fulness and perfection of the absolute right. Every individual has as much freedom in the acquisition, use, and disposition of his property, as is consistent with good order and the reciprocal rights of others.103

Kent also affirmed that “the legislature has no right to limit the extent of the acquisition of property, as was suggested by. . . some modern utopian speculations.”104 He concluded:

A state of equality as to property is impossible to be maintained, for it is against the laws of our nature . . . . [T]he operation of the steady laws of nature will, of themselves, preserve a proper equilibrium, and dissipate the mounds of property as fast as they accumulate. Civil government is not entitled, in ordinary cases, and as a general rule, to regulate the use of property in the hands of the owners, by sumptuary laws, or any other visionary schemes of frugality and equality.105

According to Kent, the individual was created with the inherent right to acquire and use property consistently with the laws of nature and of nature’s God. As a result, property does not originate with civil society. Civil society exists in order to help secure the rights of the individual. The civil ruler does not have ultimate title to the property of the individual and may not regulate it contrary to the laws of nature and of nature’s God.

The writings of the American scholars Tucker, Wilson and Kent articulated the position of the Declaration of Independence, namely, that the laws of nature and of nature’s God mandate unalienable property rights. European scholars, however, did not support this position. Nevertheless, the writings of Europeans such as Locke and Blackstone have been most influential. Their theories were foundational for the conclusions reached by Joseph Story.

4.   John Locke

Chapter five of Locke’s second treatise was devoted to an examination of that “private Dominion, exclusive of the rest of Mankind.”106 Locke based the justification for individual ownership of a thing in that person’s expenditure of labor to extract it from the state of nature. Labor was the key because it is the investment of a part of himself.107

Locke attempted to base his argument in Holy Scripture. He asserted that it is “very clear, that God . . . has given the Earth to the Children of Men.”108 This foundation is a valid statement from Scripture. Locke concluded that God gave the earth “to Mankind in common.”109 Locke gave no justification from the cited Scripture for this social compact.

Rather than defend his presupposition of common ownership, Locke moved into his classic labor theory of private property. His main premise was, “Though the Earth, and all inferior Creatures be common to all Men, yet every man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.”110 From this assertion, Locke claimed that “[w]hatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.”111

5.   Sir William Blackstone

The influential Blackstone said that the right of private property “consists in the free use, enjoyment, and disposal of all [personal] acquisitions.”112 While he spoke of the “sacred and inviolable rights of private property,”113 he equivocated concerning the origin and nature of property right. He indicated that the “original of private property is probably founded in nature,” but that much of this natural liberty was sacrificed in order to enjoy society’s protection of it.114 Apparently he was uncertain whether to adopt a law of nature position or a social compact theory.

Blackstone turned to the revealed law of God for “the only true and solid foundation of man’s dominion over external things.”115 He referred to Genesis chapter one wherein the Creator gave man “dominion over all the earth.”116 From this, he concluded that it speaks of “the general property of all mankind.”117 Blackstone considered this common ownership sufficient for only a short time as the growth of population led to conflicts over the subject of dominion. He adopted a social compact theory, asserting that “[n]ecessity begat property,”118 meaning that civil laws recognizing the institution of property were needed for the beneficial resolution of conflicts. He modified his social compact theory by holding that “bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.”119 This position was similar to Locke’s stance, indicating that property was merely a civil right and not an inherent right of man.120

6.   Joseph Story

In an article entitled Natural Law, Story addressed the origin of property.121 He asserted that all people have an equal right to the use of those things which are common and universal. Property, however, consists of an exclusive right to the possession, use and enjoyment of a thing.

Story gave a mostly descriptive statement of the historical arguments concerning property. He briefly asserted that in the mere state of nature, all things were held in common. He then indicated that the theory of possession and use could justify only a temporary claim of ownership. Similarly, he noted the labor theory was inadequate because it would erroneously allow extreme inconvenience and injuries to the common claims of others. Such should not be allowed regardless of the amount of labor spent.

Story discredited the social contract as mere unsupported theory. The claim of right by occupancy was discounted as at best temporary. Even the notion that all men were created equal and should therefore be free to appropriate whatever each one needs was inadequate because it threatened to deplete the supply needed by others. It appears that, according to Story, all theoretical justifications for property are unfounded.

Into the theoretical void, Story was able to assert his theory.

The truth, however, seems to be, that, in a state of nature, each man actually appropriates to himself whatever he desires, and can get; and he then holds it by the title of the strongest; and no other person respects his title any longer than it can be so maintained . . . .122

To Story, the “first rudiments of exclusive property begin in the fact of actual possession and power.”123 Story’s main premise was power. The proper authority to an item may be irrelevant so long as one has enough power. From this position, he argued that “whatever may be the origin of the right of property, it is very certain, that, as it is now recognized and enforced, it is a creature of civil government.”124 It was no longer relevant to discuss various theories of the origin of property right because it was “the result of the positive institutions of society.”125 Only civil society has enough power to insure the most beneficial use.

Story’s position was merely the logical result of the common ownership notion espoused by Locke and Blackstone. While Locke and Blackstone built their labor and social compact theories upon common ownership, Story implied that these were erroneous deviations. Common ownership must be the foundation, with the only right to any property dependent upon one’s power. Common ownership may be maintained by a civil order with enough power to possess all property.

The nineteenth-century debate concerning the nature of property rights was unnecessary. The Declaration of Independence settled the issue. The writings of the American legal scholars Tucker, Wilson and Kent affirmed the principles articulated in the Declaration of Independence. This position and the scholars in support of it have been rejected in favor of the theories of the European writers Locke and Blackstone, and the further conclusions of Story. The position of Tucker,Wilson and Kent, premised upon the laws of nature and of nature’s God, has not been refuted, but merely ignored. The European theories have been adopted, completely ignoring America’s break from England.


The debate concerning whether property was founded upon the laws of nature and of nature’s God or upon civil power was never adequately resolved. Nevertheless, the theories of Locke, Blackstone and Story were more readily accepted. Without a fixed position, academics began to justify American property law as the outgrowth of expediency. Expediency could be justified historically by looking to the civil practice of feudalism. As the twentieth century approached, the quest for American feudalism was underway.

Jeremy Bentham, another European theorist, was a nineteenth-century utilitarian who advocated that the end and aim of all good government should be the greatest happiness of the greatest number. He also asserted that “[b]efore laws were made there was no property; take away laws, and property ceases.”126 His position was similar to the power argument of Joseph Story. This position means that property is defined by the laws society promulgates and can be manipulated for the good of society regardless of the effect on the individual. Attention focused upon the concentration of power into the hands of those who would oversee the efficient manipulation of property for the good of the whole.

Utilitarian notions led to new ideas concerning corporations and feudalism. The historical development of the private corporation was interpreted as merely the result of efficient manipulation of property. This new perspective concerning the corporation and its structure became a means to evidence the beginning of a new feudalism. Academics argued that the Founding Fathers did not foresee the threat of the corporation because they assumed that “a revival in any form of the features of the feudalism of the past was impossible.”127 Nevertheless, according to the academics, the corporation and “legal ingenuity, would in time bring forth and re-establish the substance of those oppressions from which their English ancestors had so hardly and so recently escaped.”128 The corporation was explained to be a device for efficiently exercising power over men and property in a manner consistent with its feudal origins. This was justified by explaining that corporate authority must be derived from the state, which has replaced the feudal king. Consequently, the corporation and all who worked therein were under the ultimate control of the state.

Within a few years of the assertion of corporation feudalism, Roscoe Pound expressed his ideas about how law could be used to foster control and efficiency. He built upon the ideas of utilitarian efficiency through social regulation. He also sought to foster the greatest good of the greatest number. He wanted to accomplish the “recognizing and satisfying of human wants or claims or desires through social control.”129 Pound recommended that the law be used as a tool of social control and power. Pound hoped to see “a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence – in short, a continually more efficacious social engineering.”130

Pound advocated his theory of social engineering and offered a new theory of property consistent with his doctrine. He noted that “the law of property is a wise bit of social engineering.”131 The implicit notion of Pound’s statement was that because a law concerning property existed, the process of social engineering was already underway. He felt that the process should be increased in order to satisfy more human wants. The most efficient control and satisfaction of needs would become possible “without holding that private property is eternally and absolutely necessary.”132

Pound did not believe that property rights were unalienable. Rather, he believed that property rights were merely a tool of society that could be used as a means to control and satisfy needs. He rejected any notion of eternal or absolute concepts of property. As a result, the only property rights were those granted by the social engineer, administrative agency or state.

The early rejection of the laws of nature and of nature’s God necessitated the search for a complete theory of property. Unalienable rights were rejected in favor of civil rights and social control. The power argument of Story was to become undeniable. The utilitarian ideas of Bentham were to influence the exercise of power in a direction toward efficiency for the greatest good. Pound’s social engineers would oversee the whole procession toward a new society.

The idea of the corporation as a new feudal lord was compatible with Pound’s desire for social control. The new feudalism evidenced the efficiency of control and the satisfaction of many needs. The recognition of the new feudalism fostered the quest for the American feudalism to give greater historical justification. One academic article referred to “The Quest for Tenure in the United States.”133 The article indicated that none of the “familiar” signs of English tenure were evident in the United States. Even though the signs were not apparent, the assertion was that American law, particularly property law, was built upon a foundation of feudalism.

The result of the academic search for American feudalism is that American casebooks are built around a discussion of feudalism. The casebooks repeatedly rely upon quotes from Jeremy Bentham and Roscoe Pound to support notions of civil control. The modern casebooks on property have limited the introductory information to discussion of the theorists that advocate the power and utilitarian social engineering arguments. There is no discussion of unalienable rights. The emphasis is upon convincing the student that power, utilitarianism, social control and feudalism have been long established as the key principles of property. The premise is that the history of feudalism justifies the idea of property as the creature of society that must be socially controlled for efficiency.

A casebook by Cribbet and Johnson is commonly used for discussing property based upon feudalism, beginning with a discussion of “Property as an Institution.”134 “[W]e have an ‘institution’ whenever we discover a cluster of social usages from which an individual may depart only at his peril.”135 The foundation is established that property is merely a creature of society and is naturally subject to civil control.

The authors then present an excerpt from Jeremy Bentham: “Before laws were made there was no property . . . “136 Bentham’s comment is supported in the text by the statement that “[p]roperty rights are an instrument of society.”137 This is revealing if one realizes that an instrument is “a device functioning as part of a control system.138 Apparently, any right of property is allowed merely as an expedient measure functioning to attain a greater good for the whole as determined by the controlling civil power.

The idea that property functions within a control system is supported by an excerpt from an article by Roscoe Pound: “[T]here are no such things as rights. There are only social functions . . . . ‘[P]roperty is not a right; it is a social function. The owner . . . by the fact of his possession, has a social function to perform.'”139 Pound is quoted to indicate that if the individual does not perform his social function with his property, “the state is to intervene and compel him to employ it ‘according to its nature.'”140

The presupposition of the Cribbet and Johnson text is that it is irrelevant to speak of unalienable rights because there are no rights. The authors do not present any arguments in favor of unalienable rights or even refer to the nineteenth-century debate. The individual has no other function than to carry out the social mandate concerning the function of property. The individual is merely a worker for the state. All claims of individual ownership rights are invalid because the state asserts ultimate control, or eminent domain.

The position that society dictates the use of all property within its jurisdiction lays the foundation for a discussion of European feudalism as the root of the Anglo-American law of estates in land. The effect is to justify civil domination by a reference to the historical practice of feudalism wherein the king was the only true owner and controller of property.

The Cribbet and Johnson presentation of historical feudalism does not indicate that the colonists rejected the principles of feudalism. The authors justify civil control over property by citing the Nebraska Supreme Court case In re O’Connor’s Estate.141 The Court stated that “first and originally the state was the proprietor of all real property.”142 This premise is not substantiated but is the foundation for declaring that

ownership is in fact but tenancy . . . . When this tenancy expires or is exhausted by reason of the failure of the state or the law to recognize any person or persons in whom such tenancy can be continued, then the real estate reverts to and falls back upon its original and ultimate proprietor, or, in other words, escheats to the state.143

The Cribbet and Johnson text gives the impression that state lawmakers have the discretion whether to recognize the right of an individual to property. If this is indeed so, no person is secure in his unalienable property right. By this, any title to property becomes merely a privilege granted by virtue of the state’s temporary willingness to look favorably upon an individual, while it remains as easily and arbitrarily revocable. The text seems to indicate that civil government always retains ownership while merely allowing an individual to use the property.

When this case is related to Flynn v. City of Cambridge,144 which appears later in the Cribbet and Johnson text, an interesting theme arises. The case focused upon a dispute over a city ordinance which prohibited the removal from the market of any controlled rental unit unless the city rent control board issued a permit. Under previous law, the owners had the right to occupy the unit. The law changed, denying them the right to move into the property which they owned but were previously renting to others. “[T]he governmental action did not interfere with the owner’s primary expectation concerning the use of the property, and the owner was still able to obtain a reasonable return on its [sic] investment.”145 As well, “they were not denied a right to which they had a legitimate expectation. Clearly the government is not required to compensate an individual for denying him the right to use that which he has never owned.”146 The implication is that while an individual may think he owns a piece of property, his assumption is erroneous. The state is the owner. The individual may reasonably expect only whatever benefit the government allows. His only legitimate expectation is to be able to use the property as the state allows.

The state is asserted to be the ultimate proprietor of all real property. The individual interest is held by what is no more than a license. A license rests entirely upon the owner’s permission. It is revocable at the will of the licensor. A license is not considered a property interest under the requirement that compensation be given for property taken by right of eminent domain.147

Examination of a second casebook, Basic Property Law by Browder, Cunningham and Smith,148 indicates that the above view of property is not uncommon. Jeremy Bentham is again relied upon to define property as “a legally protected ‘expectation.'”149 The text notes Bentham’s claim that ” a strong and permanent expectation” of receiving an advantage “can result only from law.”150 Of course, the law is a result of civil power.

The reliance upon Bentham is consistent with the utilitarian notion that the law should promote the efficient and maximum fulfillment of human needs and aspirations. The concern then becomes how to efficiently meet legitimate expectations. Browder, Cunningham and Smith rely upon Posner for the notion that

“the legal protection of property rights has an important economic function: to create incentives to use resources efficiently,” and that there are three criteria of an efficient system of property rights:

1. Universality – i.e., “all resources should be owned or ownable by someone . . . .”

2. Exclusivity – to give owners an incentive to incur the costs required to make efficient use of resources owned by them.

3. Transferability – because, “[i]f a property right cannot be transferred, there is no way of shifting a resource from a less productive to a more productive use through voluntary exchange.”151

Posner’s three criteria justify complete state control of property. This is necessary in order to obtain top efficiency and to insure that all resources are owned by someone. This efficient system fosters the individual’s perception of exclusive ownership and thereby encourages him to incur the maintenance expenses. State expenditures are thereby reduced. It is questionable, however, whether Posner’s efficient system truly has room for “voluntary” transfers of property. The fullness of state power and the use of coercive tactics serve to give an appearance of voluntariness to a compelled submission to civil control.

Posner’s outline is the logical groundwork for the Browder, Cunningham and Smith presentation of the history of feudalism. The feudal property system allegedly developed because it worked to efficiently meet the needs of the established regime. The assertion is made that many of the benefits of the feudal system are the same as those we currently associate with ownership.152 This is an apparent endorsement of feudalism as an acceptable institution for use in the United States in order to foster greater control and more efficient redistribution of resources.

The two casebooks examined are not peculiar in their endorsement of feudalism and civil power. Though they are the most commonly used casebooks, all property casebooks are written from a similar perspective. Property casebooks can be divided into two basic categories: those which are primarily descriptive of the current state of the law, and those which examine the theory of property.153 The two books relied on for this examination are primarily theoretical. Regardless of the category, however, all the books rely upon a lengthy discussion of feudalism to explain modern practices of property law. As a result, extensive regulation to the point of complete government control is justified.

In summary, the information in the typical casebook asserts that property is merely a function of society and therefore subject to state control. There is no discussion of the nineteenth-century debate over the degree of civil regulation and unalienable rights. The concept of unalienable rights is not even acknowledged. The history of feudalism is assumed applicable to the United States. There is no presentation of evidence showing the American rejection of feudal principles. The casebooks assert that any interest which a person holds in any property is merely by virtue of the laws of society recognizing the right of the individual to hold such property, at least so long as it is expedient for the achievement of a justifiable social function. As in the feudal system, the individual is able to hold only as a tenant but never as full owner. The ultimate proprietor is the state. As a result, a new generation of lawyers is equipped to facilitate further government control over property. Unalienable property rights are increasingly threatened for the benefit of society.

The lengthy discussion of various theories of property is important because ideas have consequences. This impact is increased if ideas are more widespread. The use of property law casebooks served to popularize the justification of civil power over property. These ideas manifested consequences in the form of progressive ideas in the political arena.


The third stage was the political enactment of the theoretical concepts. The Progressive Movement in American history advocated centralization of civil power. Such a strong government would extend control over industry, finance, transportation, agriculture, labor, education and morality. The new social and political platforms justified public control of social and economic institutions as the essence of liberal democracy.154

The idea of inevitable social progress gained power in the latter nineteenth century. The idea of continual progress received intellectual support from Darwin and the idea of evolution, and the concept of the survival of the fittest appeared to make progress inevitable.155

The evolutionary idea of progress undercut the foundations of individual liberty and limited government. Natural law and natural rights theories were abandoned. Refusing to attribute their rights to the laws of nature and of nature’s God, people turned to civil government as the giver of rights.156

The Progressives used democracy to advance their evolutionary socialism. The reformers espoused democracy in an attempt to expand the popular control of civil power, linking this to progress and Progressivism. Democracy was identified with equality and the use of governmental power to make men more equal.157

The social gospel movement supported the social reform ideas of the Progressives.

The social gospel movement was an effort to utilize Christianity for transforming the social order. Social gospellers had generally imbibed considerable doses of socialism, Marxism (usually second hand), utopianism and were often influenced . . . by such Americans as Henry George and Edward Bellamy . . . . Social gospellers were often most vociferous in their condemnation of the American economic system: private property, the profit motive, corporations, and competition.158

Proponents of the social gospel pushed for government intervention in the economy. Washington Gladden advocated, “It may become the duty of the state to reform its taxation, so that its burdens shall rest less heavily upon the lower classes; . . . to limit the ownership of land; to modify the laws of inheritance; and possibly to levy a progressive income tax.”159 George D. Herron claimed, “It is the vocation of the states . . . to so control property, so administer the production and distribution of economic goods, as to give to every man the fruit of his labor, and protect the laborer from the irresponsible tyranny of the passion of wealth.”160

Some Americans were planning to gradually socialize the country before World War 1. Among the most influential were Herbert Croly, Walter Weyl and Walter Lippman. Croly’s book of 1909, The Promise of American Life, served to influence Theodore Roosevelt’s New Nationalism of 1912.161

A progression toward socialism within the American context was proposed. Rather than openly support socialism, such terms as nationalism, social democracy and democracy were used. The claim was that civil government should exercise control over every aspect of the economy for the public interest.162 Lippman encouraged the gradual transformation of America toward a day when “[p]rivate property will melt away; its function will be taken over.”163

The power of the federal government was to be increased so that the chief executive would control the public welfare. Teddy Roosevelt declared that those concerned with property and profits “must now give way to the advocate of human welfare, who rightly maintains that every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it.”164

World War I revealed the effectiveness of a socialized economy. Industry, transportation and finance were integrated and controlled by the federal government. After the war, the issue was whether civil government should continue control over production and distribution. Years later, the great Depression fostered arguments for more centralization.

During his 1932 campaign for the Presidency, Hoover set forth his conception of the people’s choice:

It is a contest of two philosophies of government . . . . Our opponents . . . are proposing changes and so-called new deals which would destroy the very foundations of our American system . . . . You cannot extend the mastery of government over the daily life of a people without somewhere making it master of the people’s souls and thoughts.165

Despite Hoover’s efforts, Franklin Delano Roosevelt came into power. His New Deal extension of governmental control over the economy was consistent with the Progressive tradition. The New Deal fostered the redistribution of wealth. It inaugurated control over labor and farming.166

The New Deal brought the Agricultural Adjustment Act (AAA) of 1932 to establish equality between agriculture and industry by controlling commodity prices and easing farm credit and mortgages. The Secretary of Agriculture offered farmers government subsidies in return for reduced production.167

The AAA presupposed a planned economy. The plan required a reduction of both farm crops and the number of farmers. The agenda proposed the removal of millions of acres of land from cultivation and the resettlement of farmers in small semi-industrial communities. Mortgage debts were cancelled for some of those who were allowed to continue farming.168 Civil power premised upon the state as preeminent leads to the displacement of persons who are considered no longer necessary and to the reduction of people authorized to pursue a profession. The pursuit of happiness is alienated. People and professions are expendable.

The Supreme Court recognized constitutional grounds to overturn some of the New Deal legislation. The Court said the AAA exercised coercion by economic pressure. Upholding the Act would have “the United States converted into a central government exercising uncontrolled police power in every state of the Union, superseding all local control or regulation of the affairs or concerns of the states.”169

Prior to F.D.R.’s packing of the Court, New Deal legislation was overruled as an improper use of the Commerce Clause. After the Court reform, much less was needed to affect commerce and thereby justify regulation. The case of Wickard v. Filburn170 serves to illustrate the extension of power.

Filburn owned a small wheat farm. Pursuant to the Agricultural Adjustment Act of 1938, Filburn was allotted 11.1 acres for a normal yield of 20.1 bushels of wheat per acre. He cultivated 23 acres, however, and harvested the excess for his personal consumption. Consequently, he was fined for the violation.

Filburn was cited for violating the scheme of the AAA The Act was to control the volume of wheat in commerce in order to avoid surpluses and shortages and the consequent price changes and obstructions to commerce. The Secretary of Agriculture directed the annual national acreage allotment, which was then apportioned to the states and their counties, and then allotted to individual farms.

The federal regulation extended even to the production not intended for commerce but intended for private consumption. The federal quota applied to the amount to be harvested for sale and for private consumption. Wheat produced in excess could neither be disposed of nor used except upon payment of a penalty.

The effect of the statute was to limit the use of individual property for personal purposes and needs. “That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”171 This argument justified the civil government usurpation of an individual’s right to use his property in a manner consistent with the laws of nature and of nature’s God.

The case of Wickard v. Filburn evidences the expansion of governmental power premised upon feudal notions. The continuation of this philosophy has led to the redefinition of property and a new feudalism. The new property is premised upon the growth of governmental power. Such expansion has led to welfare, occupational licensing, monopolies and zoning. This expansion of power increases the similarity to the feudalistic state wherein all power and ownership were in the king, while the people were wholly dependent upon the king’s benevolence.172 Unalienable rights are violated. Independence is eroded for the sake of the creation of a new society wherein all power rests with the legislature and the courts. The new property bestowed by the benevolent state is merely held by the recipient on a conditional basis. It is always subject to confiscation in the interest of the paramount state.

While such a decision as Wickard v. Filburn should not have been surprising when handed down, such a decision should be equally expected today. The underlying philosophy of the modern Court is not distinguishable from the Court of the late 1930’s. More evidence is found in the case of Hawaii Housing Authority v. Midkiff.173

The Hawaii legislature sought to compel large landowners to break up their estates. Upon application by lessees on the land, the property would be condemned and sold by the state. The Court upheld the legislation by finding that the action was rationally related to a purpose within the authority of the legislature. The purpose of the act was to address problems of a malfunctioning land market wherein willing buyers could not purchase at a fair price. The modern feudal kings control property, the market and prices.

These cases illustrate the increasing assault upon unalienable property rights. All this has stemmed from a rejection of the laws of nature and of nature’s God as the foundation for law. Instead, theories of social control and power have been adopted. The failure to adequately resolve the nineteenth-century debate has led to the acceptance of increased civil control. The failure to recognize that Americans rejected feudalism while retaining some of the language has led to the claim that American property law is patterned after feudal principles and practices. The casebooks advocate this position without question. Consequently, the justification of civil power fostered drastic ramifications politically and legally. Some modern scholarship attempts to address the expansion and abuse of power that threatens property rights.

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*   Copyright © 1989, 2006 Richard A. Huenefeld. Used with permission.
   91.    2 W. Blackstone, Commentaries *11.
   92.    3 Blackstone’s Commentaries 11 n.* (St. George Tucker ed. Philadelphia 1803 & photo. reprint 1969).
   93.    Id.
   94.    Id.
   95.    The Works of the Honourable James Wilson (B. Wilson ed. Philadelphia 1804).
   96.    3 id. at 182.
   97.    Id. at 193-94.
   98.    Id. at 194.
   99.    Id. at 194-95.
   100.    2 J. Kent, Commentaries *317.
   101.    Id. at 318.
   102.    Id. at 319.
   103.    Id. at 327-38.
   104.    Id. at 328.
   105.    Id. at 328-29.
   106.    J. Locke, supra note 30, at 328.
   107.    Id. at 328-30.
   108.    Id. at 327 (quoting Psalm 115:16).
   109.    Id.
   110.    Id. at 328-29. 111 Id. at 329.
   111.    Id. at 329.
   112.    1 W. Blackstone, Commentaries *138.
   113.    Id. at 140.
   114.    Id. at 138 (emphasis added).
   115.    2 id. at 3.
   116.    Genesis 1:28.
   117.    2 W. Blackstone, Commentaries *3.
   118.    Id. at 8.
   119.    Id. at 5.
   120.    Id. at 11.
   121.    J. Story, supra note 60, at 155-56.
   122.    Id. at 155.
   123.    Id.
   124.    Id. at 155-56.
   125.    Id. at 156.
   126.    J. Bentham, Theory of Legislation 69 (Oceana Pub. Inc. ed. 1975).
   127.    Richmond, The New Feudalism, 6 Am. Law. 413, 413 (1898).
   128.    Id.
   129.    R. Pound, An Introduction to the Philosophy of Law 47 (rev. ed. 1954).
   130.    Id.
   131.    Id. at 132.
   132.    Id.
   133.    Vance, The Quest for Tenure in the United States, 33 Yale L.J. 248 (1924).
   134.    J. Cribbet & C. Johnson, Cases and Materials on Property 1 (5th ed. 1984).
   135.    Id. at n.* (quoting 1 Powell on Real Property 7 (1976)).
   136.    Id. at 4 (quoting J. Bentham, Theory of Legislation 113 (Dumont ed. 1864)).
   137.    Id. at 11 (quoting Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. Papers & Proceedings 347 (1967)).
   138.    The American Heritage Dictionary of the English Language 666 (2d college ed. 1985).
   139.    J. Cribbet & C. Johnson, supra note 134, at 12-13 (quoting Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A.J. 993, 996 (1939)).
   140.    Id. at 13.
   141.    Id. at 240-41 (quoting 126 Neb. 182, 252 N.W. 826 (1934)).
   142.    Id. at 240.
   143.    Id.
   144.    Id. at 551-56 (quoting 383 Mass. 152, 418 N.E.2d 335 (1981)).
   145.    Id. at 555.
   146.    Id.
   147.    F. Philbrick, Property 328 (5 The National Law Library, R. Pound ed. 1939).
   148.    O. Browder, Jr., R. Cunningham & A. Smith, Basic Property Law (4th ed. 1984).
   149.    Id. at 2.
   150.    Id. (quoting J. Bentham, Theory of Legislation 69 (Oceana Pub. Inc. ed. 1975)).
   151.    Id. at 4 (quoting R. Posner, Economic Analysis of Law 10-13 (1972)).
   152.    Id. at 220. The textual discussion of feudalism beginning on page 220 is considered central, and the feudal theme continues through the remaining portion of the text.
   153.    Descriptive texts: J. Bruce, J. Ely, Jr. & C. Bostic, Cases and Materials on Modern Property Law (1984); C. Donahue, Jr., T. Kauper & P. Martin, Cases and Materials on Property: An Introduction to the Concept and the Institution (2d ed.1983); E. Rabin, Fundamentals of Modern Real Property Law (2d ed. 1982); P. Goldstein, Real Property (1984); A. Casner & W. Leach, Cases and Text on Property(3d ed. 1984); J. Dukeminier & J. Krier, Property (1981); C. Haar & L. Liebman, Property and Law (2d ed.1985). Theoretical texts: O. Browder, Jr., R. Cunningham & A. Smith, Basic Property Law (4th ed. 1984); J. Cribbett & C. Johnson, Cases and Materials on Property (5th ed. 1984); C. Berger, Land Ownership and Use (3d ed. 1983); S. Kurtz & H. Hovenkamp, Cases and Materials on American Property Law (1987).
   154.    2 S. Morison & H. Commager, The Growth of the American Republic 356 (4th ed. 1950).
   155.    4 C. Carson, A Basic History of the United States 2-3 (1985).
   156.    Id. at 3.
   157.    Id. at 117.
   158.    Id. at 122-23.
   159.    Id. at 123 (quoting W. Gladden, Applied Christianity 69-70 (1886)).
   160.    Id. at 124.
   161.    Id. at 126.
   162.    Id. at 127.
   163.    Id. at 128 (quoting W. Lippman, Drift and Mastery 147 (1961)).
   164.    T. Roosevelt, The New Nationalism 33-34 (W. Leuchtenburg ed. 1961 & reprint 1971) (speech on Aug. 31, 1910).
   165.    2 S. Morison & H. Commager, supra note 154, at 582.
   166.    Id. at 586.
   167.    Id. at 591.
   168.    Id. at 593.
   169.    United States v. Butler, 297 U.S. 1, 77 (1936).
   170.    317 U.S. 111 (1942).
   171.    Id. at 127-128.
   172.    See generally Reich, The New Property, 73 Yale L.J. 733 (1964).
   173.    467 U.S. 229 (1984).