We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 05 August 2009
In the decade spanning 1968 to 1978, the Supreme Court cited the concept of the “new property” in over forty cases concerning the rights of clients in public sector relationships. The term new property first appeared in two law review articles written by Charles Reich in 1964 and 1965, and its primary points have since found favor with a number of political theorists. At the heart of the “new property” idea was the belief that a great many public sector benefits performed traditional functions of property and, therefore, ought to have been redefined as property in the law. Accordingly, Reich argued that public sector grants, including public assistance as well as unemployment compensation and Social Security, should lose their legal status as gratuities or charitable gifts and become instead “property” with all of the constitutional guarantees of due process that adhere to property in our system. This was a most egalitarian project indeed, with implications that went far beyond extending rights of due process. By transforming all men and women into property owners regardless of their private assets, the “new property” paved the way for a political vocabulary which wedded the particular and exclusive language of property with the universal, all-inclusive language of egalitarianism. In most respects this redefinition simply would have expanded the egalitarian direction implicit in past liberal functionalist theories of property, developments which many had already approved.
1 Donahue, Charles, “The Future of the Concept of Property Predicted from Its Past,” Property: Nomos, vol. XXII, ed. Pennock, J. Roland and Chapman, John W. (New York, 1980), fn. 6, p. 59Google Scholar. A few of the more prominent “new property” cases are Goldberg v. Kelly, 1970; Wheeler v. Montgomery, 1970; Perry v. Sidermann, 1972; Board of Regents v. Roth, 1972; Bishop v. Wood, 1976.
2 Reich, Charles, “The New Property,” Yale Law Journal, 73 (04 1964)CrossRefGoogle Scholar; “Individual Rights and Social Welfare: The Emerging Legal Issues,” Yale Law Journal, 74 (03, 1964)Google Scholar. The reader will note that I do not discuss Reich's later works such as The Greening of America and The Sorcerer of Bolinas Reef because they have had no influence at all on constitutional theory. This essay concerns itself with Reich's “new property” theory and not his later intellectual odyssey.
3 Macpherson, C.B., “Human Rights as Property Rights,” Dissent, 24 (Winter 1977)Google Scholar; Bilski, Raphaella, “Basic Parameters of the Welfare State,” Social Indicators Research, 3 (1976)CrossRefGoogle Scholar, esp. part 3, “The Right to Welfare.” For an attempt to explain this process rather than to legitimate it, see Friedman, Kathi V., Legitimation of Social Rights and the Western Welfare State: A Weberian Perspective (Chapel Hill, 1981).Google Scholar
4 Furniss, Norman, “Property Rights and Democratic Socialism,” Political Studies, 26 (1978), 451–453 presents a useful discussion of functionalist theories of property.CrossRefGoogle Scholar
5 Gutmann, Amy, Liberal Equality (Cambridge, 1980), pp. 1–12.Google Scholar
6 Shaffer, Thomas L., “Man and Things: The Liberal Bias Against Property,” American Bar Association Journal, 57 (02, 1971).Google Scholar
7 Gutmann, Liberal Equality; Dewey, John, Liberalism of Social Action (New York, 1963), pp. 48, 32.Google Scholar
8 Dewey, Liberalism, p. 56.
9 Hobhouse, L.T., Liberalism (Oxford, 1964), p. 66Google Scholar. For a similar, recent statement, see Ackerman, Bruce, Social Justice and Liberal State (New Haven, 1980), pp. 163–167; 345–48.Google Scholar
10 Dewey, Liberalism.
11 Blackstone, William, Commentaries on the Laws of England, vol. 2 (Chicago: 1979; facsimile reprint 1766), 2.Google Scholar
12 Thomas C. Grey, “The Disintegration of Property” in Property: Nomos, ibid., p. 74.
13 Hohfeld, Wesley N., Fundamental Legal Conceptions (New Haven, 1923), pp. 23, 65Google Scholar; Commons, John R., The Legal Foundations of Capitalism (Wisconsin, 1957; reprint 1924)Google Scholar; Perlman, Selig, “John Rodgers Commons,” in Commons, The Economics of Collective Action (New York, 1951), p. 4.Google Scholar
14 Furniss, “Property Rights and Democratic Socialism.”
15 Berle, Adolf A., The American Economic Republic (New York, 1963), pp. 29, 30.Google Scholar
16 Reich, “The New Property,” pp. 771, 775, “A Construction designed to serve certain functions.”
17 Ibid.
18 Ibid.
19 Ibid., p. 779.
20 Ibid., p. 785.
21 Reich, “Individual Rights and Social Welfare,” p. 1255.
22 van Alstyne, William, “Cracks in the New Property: Adjudicative Due Process in the Administrative State,” Cornell Law Review, 62 (1977), p. 484Google Scholar.
23 Ibid., p. 484–85.
24 Reich, “Individual Rights and Social Welfare,” p. 1255; Reich, “The New Property,” p. 737.
25 Bowie, Norman E., “Welfare and Freedom,” Ethics, 89 (1979)CrossRefGoogle Scholar; Thurow, Lester, “Government Cash Expenditures: Cash or In-Kind Aid,” in Markets and Morals, eds. Dworkin, , Bermant, and Brown, (New York, 1977), pp. 96–98Google Scholar.
26 Reich, “Individual Rights and Social Welfare,” p. 1255.
27 Ibid.
28 Reich, “The New Property,” p. 771.
29 I do not mean to imply, as does Nozick, that voluntary exchange creates a full historical entitlement which can not in any way be violated, but rather that a somewhat independent origin for claims helps lay the foundation for property that remains distinct from grants.
30 Macpherson, “Human Rights as Property Rights,” p. 77.
31 Nozick, Robert, Anarchy, State and Utopia (New York, 1974), pp. 178–182Google Scholar; Steiner, Hillel, “The Natural Right to the Means of Production,” The Philosophical Quarterly, 27 (1977), 45–46CrossRefGoogle Scholar; Goldman, Alan, “The Entitlement Theory of Distributive Justice,” The Journal of Philosophy, 73 (1976), 824–834CrossRefGoogle Scholar.
32 For an attempt to ground rights in consequences see Scanlon, T.M., “Rights, Goals and Fairness,” in Public and Private Morality, ed. Hampshire, Stuart (Cambridge, 1978)Google Scholar.
33 Nozick, Anarchy, State and Utopia, pp. 179–80.
34 Bilski, “Basic Parameters of the Welfare State,” p. 466; cf. Gewirth, Alan, Reasons and Morality (Chicago, 1978), pp. 246–247Google Scholar. “Equal rights to additive wellbeing … not equal rights to particular additive goods.” “… [T]he emphasis falls rather on developing for each person the means that enable him to obtain money for himself through his own agency as applied in productive work.”
35 Michael B. Levy, “Liberal Equality and Inherited Wealth,” Political Theory, forthcoming.
