ABSOLUTIST PROPERTY

With the advance of industrialization in the mid-nineteenth century, political sectors previously associated with democratic republicanism (e.g., the Whigs) moved away from the Jeffersonian ideal of virtue and material independence. In its place, they increasingly assigned to law the role of maintaining social cohesion and securing property rights (Matthews Reference Matthews1980). As a result, concerns emerged that the constitutional order did not adequately protect key rights—especially property and contract—which consequently were subjected to extensive judicial reinterpretation.

Drawing on a particular formalist interpretation of the common law, the view gradually prevailed that property was a strictly legal matter and thus neutral in political terms (Nedelsky Reference Nedelsky1990). Judge George F. Comstock made this doctrinal shift explicit appealing to the authority of Sir William Blackstone, who supposedly provided doctrinal legitimacy for this legal understanding: “So great is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for the general good of the whole community.”Footnote ⁴

A “privatistic” conception of law was consolidated, whose core centered on the idea that property is “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (Blackstone Reference Blackstone1765/1897, II, 167). Property thus came to be regarded as the absolute, exclusive, and exclusionary right of an individual over physical objects (Mundó, Soza, and Albrecht Reference Mundó, Soza, de Medeiros Albrecht, Azmanova and Chamberlain2022, 48–50).

Although this interpretation became dominant, its exceptions ultimately shaped property law. Courts increasingly confronted cases in which disputes did not involve any physical object and wherein the parties’ rights were not in any meaningful sense “absolute.” In response, the law displayed its creative capacity: where no physical object existed, a legal fiction was constructed, where ownership was not absolute, its limitations were masked through the reification of rights treating dominion as inherent either in the nature of the object or in the proprietor (Vandevelde Reference Vandevelde1980).

These developments marked a process of “de-physicalization” of the term “property” because it became almost all-encompassing, shifting from tangible objects to the protection of abstract value. This was reinforced by legal reforms, in particular due process, which safeguarded individuals against the deprivation of life, liberty, or property by the State (Krotoszynski Reference Krotoszynski1996). Consequently, throughout the nineteenth century, the legal conception of property expanded dramatically: interests previously barely acknowledged as protectable objects—for example, business assets, trademarks, trade secrets, shareholder rights, and even expectations of rent—came to be treated as property by the century’s end, potentially alienable and fully protected under the law (Heller Reference Heller1999).

THE (ANTI-PUBLIC) CONTRACT

Despite the expansion of markets and the increasing complexity of the economy, many courts—especially the US Supreme Court—persisted in this privatistic, Blackstonian conception of law. Thus, between the late-nineteenth and early-twentieth centuries, public law was reduced to an external guarantor of private law, limiting redistributive interventions. This formalist conception of “legal classicism” (Kennedy Reference Kennedy1975) rested on the principle that popular sovereignty applied only to the legislature and, to a lesser extent, the executive but not the judiciary.Footnote ⁵ Accordingly, law came to be conceived as the domain of the judges (Wiecek Reference Wiecek1998).Footnote ⁶ This idea of the “rule of law” led to an “implicit priority” of property “over the republican principles of government by consent” (Nedelsky Reference Nedelsky1990, 7).Footnote ⁷ The political-fiduciary framework of foundational republicanism thereby was eclipsed.

This conception of property came to encompass any economically valuable interest, notably the contract: “Property is everything which has an exchangeable value,” Judge Noah Swayne observed.Footnote ⁸ This legal turn had immediate implications for emerging labor regulations. In 1886, Judge Isaac G. Gordon invalidated a wage increase for steelworkers on the grounds that it would “prevent persons who are sui juris from making their own contracts,” constituting an “insulting attempt to put the laborer under legislative tutelage, which is…subversive of his rights as a citizen of the United States.”Footnote ⁹ Wage and hour regulations were struck down as infringements of contractual freedom, with rulings asserting that “labor is property” and that workers, like any other property owner, possess an unrestricted right to alienate their labor.Footnote ¹⁰

The historian William E. Forbath (Reference Forbath1991, 168) noted that under that classical legal order, “workers could be treated like commodities, or like property at someone else’s disposal.”Footnote ¹¹ Forbath highlighted the limits of the unlimited privatistic conception of law because its insistence on “propertizing” every civil relationship through contract collided with the reality of vast numbers of impoverished wage laborers. Thus, autonomy became coextensive with private-property ownership, which in turn was structured through contractual freedom—understood as the “absolute” alienability of property, including one’s own labor.

THE (RE)POLITICIZATION OF PROPERTY

This particular application of classical legal doctrine encountered strong resistance. Union demands, although grounded in the tradition of republican liberty (Gourevitch Reference Gourevitch2015; Tomlins Reference Tomlins1985), were perceived as threats to liberty and consequently were legally constrained through the contractual conceptualization of property.Footnote ¹²

However, with the rise of unionism and the regulatory agenda of many state legislatures, this privatistic and absolutist model of property and contract gradually was challenged. Emerging philosophical pragmatism and related disciplines repoliticized the understanding of rights—and, consequently, of property. Historians including Charles A. Beard, Carl L. Becker, and Vernon L. Parrington emphasized the role of economic interests in the formation of legal and political institutions, while economists including Richard T. Ely, John R. Commons, and Thorstein Veblen questioned the notion of an unregulated market as natural and inevitable.

Jurist Roscoe Pound stood out for his critique of the idea of unlimited contractual freedom and its disconnection from real social conditions. He questioned why—despite the evident material inequality—courts insisted on applying a purely idealized contractual equality by treating relationships between employers and employees as if they were symmetrical. By magnifying property and contract, the judiciary “exaggerates private right at the expense of public interest” (Pound Reference Pound1909, 461).

Similarly, early-twentieth-century American legal realism, or “instrumental pragmatism” (Summers Reference Summers1982), rejected the formalism of legal classicism and its conception of law as a preexisting, self-contained collection of objective, neutral, and nonpolitical rights. Hamilton (Reference Hamilton1932, 864) summarized this critique succinctly: “Neither ‘liberty’ nor ‘property’ is antecedent to the state or beyond the domain of public control.”

Part of legal realism was closely linked to late-nineteenth-century economic institutionalism, particularly John R. Commons (Reference Commons1893/1963), for whom the distribution of wealth did not obey natural-market laws but instead was shaped by political decisions. The state creates monopolies through instruments such as patents, copyrights, and franchises, thereby affecting commodity values and the generation of rents. Consequently, “property cannot exist without the state” but is constituted politically. Commons (Reference Commons1893/1963) recovered the fiduciary notion of property from Jeffersonian republicanism, albeit stripped of its natural-law foundation and its virtuous-yeoman ideal: “It is inaccurate, therefore, to speak of limitations on the right of property. There is, strictly speaking, no such thing as absolute, unlimited right of property, which law steps in as an afterthought to restrict. When property right is originally given by the state, it is with these restrictions already asserted” (Commons Reference Commons1893/1963, 109–10).

Conceptually, all forms of property come to be understood as public property constituted through a social relationship of a fiduciary nature, conferred on the individual in the form of private property “not [as] a single absolute right, but [as] a bundle of rights” conditioned on the common good (Commons Reference Commons1893/1963, 92). Property was reconceptualized as a socially constructed bundle of rights decomposed and recomposed according to social forces. Thus, property right prescribes dynamic relationships among individuals with differing powers and interests rather than a simple, static relationship between an owner and a possessed object.

Expanding on Hohfeld (Reference Hohfeld2013–2014), Honoré (Reference Honoré and Guest1961, 108–34) developed a more comprehensive taxonomy of the bundle of rights through his 11 “incidents” (e.g., possession, use, management, income, capital, and transferability), encompassing not only the rights commonly associated with Blackstonian property (i.e., use, exclusivity, and alienability) but also the limitations imposed by any legal system on the rights conferred by property. Accordingly, full property requires the concurrence of most of these incidents, yet it still may exist even when some are absent.

FROM REPUBLICAN PROPERTY TO CONTEMPORARY CONSTITUTIONALISM

Far from being a legal anachronism, the conceptual matrix of early American republicanism continues to exert significant influence on modern constitutionalism in two main areas: (1) the institution of eminent domain embedded in the social function of the property clause; and (2) in labor relations, particularly where contract is understood as coextensive with property.Footnote ¹³

Before advancing further, however, it is necessary to outline the fiduciary framework of the republican conception of government. Endowed with the same natural rights, the people are the trustors of national sovereignty, delegating the care of their welfare to their representatives. As James Madison observed in The Federalist No. 46, “The federal and state governments are in fact but different agents and trustees of the people” (Madison Reference Madison, Carey and McClellan1788/2001, 243). This logic can be extended to the republican conception of property and, in particular, to its articulation of eminent domain.

Eminent domain is the legal mechanism through which governments expropriate private property without consent when it is required for the public welfare. Although affected parties could assert moral claims, just compensation was not enforceable until 1791, with the ratification of the Takings Clause of the Fifth Amendment (i.e., “nor shall private property be taken for public use, without just compensation”). Even thereafter, private property remained subordinate to the public interest (Miceli Reference Miceli2011).Footnote ¹⁴ From the colonial period through the nineteenth century, courts employed an expansive notion of “public utility,” whereas legislatures often adopted a narrow interpretation of “expropriation.” This facilitated the expansion of productive infrastructure (e.g., waterways, roads, and mines) while reducing compensation by shifting part of the burden onto wealthier owners, thereby alleviating pressure on the public treasury.

The fiduciary-republican imprint of eminent domain can be discerned in two respects. First, the people delegate to their government the authority to “determine the conditions of the grants,” up to the point of expropriating some individuals when the public welfare so requires. This fiduciary logic assumes a second-order structure insofar as the exercise of eminent domain was conceived as further delegable to certain private enterprises (e.g., mills and forges) deemed beneficial to the community (Lewis Reference Lewis1909, 370; Miceli Reference Miceli2011, 49). Such enterprises could appropriate rivers, roads, and access to third-party forests on the grounds that “it was thought appropriate for such enterprises to possess the advantages of eminent domain” (Ely Reference Ely1992, 25).

Second, the legal and normative foundation of eminent domain can be understood fully only as grounded in the principle that private law—particularly property law—derives from the social compact. From this compact, public law—including eminent domain—exists to safeguard the welfare of the sovereign, linking individual rights to broader civic obligations.Footnote ¹⁵ In Jeffersonian terms, private property is “the gift of social law” and its tenure is subordinated to “the progress of society.”

This interpretive framework exerted extensive and long-lasting influence on the international political-constitutional order. In Latin America, significant cases include Article 27 of the 1917 Mexican Constitution, Article 58 of the Colombian Constitution, and Article 5 of the 1988 Brazilian Constitution (Ankerson and Ruppert Reference Ankerson and Ruppert2006; Bonilla Reference Bonilla2011; Mirow Reference Mirow2011; Vera Reference Vera2006). In Europe, it can be traced in the constitutions of the Weimar Republic and Austria of 1919, the Spanish Republican Constitution of 1931, the German Basic Law of 1949, and the Portuguese Constitution of 1976 (Alexander Reference Alexander2006; Lubens Reference Lubens2007).

The second area in which foundational republicanism is traceable in contemporary constitutionalism is labor rights, wherein mainstream political philosophy and the liberal legal order justify restrictions on rights of alienation and accumulation in ways analogous to foundational republicanism.Footnote ¹⁶ These rights in turn ground some major economic entitlements and provide the normative basis for redistributive policy.

It often is asserted that all individuals must have a voice in the political order. However, as Rose (Reference Rose1996, 347) noted, “to acquire that voice, they need a secure baseline of property—and, if necessary, this baseline must be secured by redistribution.” Although contemporary accounts of republican independence as non-domination differ from those grounded in land tenure, “the basic idea is still there—that property nurtures the independence necessary for political participation” (Rose Reference Rose1996.)

Because land is no longer available in most countries to fulfil Jefferson’s ideal of the small freeholder and material independence, the right to free labor may have partially come to assume this role and, consequently, some of the restrictions historically applied to land tenure.Footnote ¹⁷ Accordingly, labor law enshrined in many contemporary legal systems limits the capacity to alienate labor in two ways. On the one hand, it restricts the power of an individual “of direct coercion over their own labor” (Simon Reference Simon1991, 1352) prohibiting, for example, the free contractual sale of one’s own labor under slavery. On the other hand, it also limits the powers of the employer to exert coercive control over the worker by legally determining the conditions under which labor may be acquired, including contract terms, working time, wages, and vacation entitlements. The International Labor Organization’s maxim that “labor is not a commodity” illustrates the persistence of this view.