Abstract

This dissertation examines rationales for constitutionally protecting property rights. It begins with arguments that posit a natural right to property ownership, either in a libertarian, contingent form or in an egalitarian, noncontingent form. After questioning the existence of such a right in either form, and its ability to justify the constitutional protection of property rights even if it did exist, I turn my attention to rationales grounded on fairness, process failure, efficiency and public choice theory. I conclude that while these latter rationales contain a kernel of validity, they do not by themselves justify insulating property rights from relatively democratic political processes. ;But while traditional rationales are ultimately insufficient, I believe that an important rationale has been overlooked; viz., the positive effect that constitutional protections can have on the operation and continued survival of a democractic polity. By providing a baseline for the state's treatment of individuals and groups, a constitution lowers the stakes of political conflict and makes democratic decision-making possible. Hence, there are good reasons to provide some constitutional protection for rights that are largely or even purely positive, such as I hold property rights to be. I illustrate this rationale by analyzing the "liberal" political thought of James Madison and the "republican" political thought of Niccolo Machiavelli. Despite their normative differences, their analyses of factional conflict and the danger it poses to a republic share striking similarities. ;I conclude with the moderate proposition that the constitutional mandate of just compensation in cases of property confiscation, and other state actions that mimic confiscation, can help protect against oppression and corruption. By doing so, it limits the intensity of factional political conflict and permits the operation of democratic decision-making processes. It thus serves as a valuable thread in the political safety net that a constitution can provide. Although my analysis suggests that where the line is drawn between a mandatorily compensable "taking" and a "non-taking" is inevitably somewhat arbitrary, it does support the sort of constitutional property rights protection suggested by the "Takings" clause of the Fifth Amendment of the United States Constitution