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p. 454. Propertylocked

  • David J. Bodenhamer


The Constitution of 1787 contains no broad guarantee of the right to property, but it established numerous protections for property. ‘Property’ explains that the right to property found explicit protection in the Constitution with the 1791 Fifth Amendment. It also describes how the courts reshaped the law of property as a capitalist instrument in ways that fit both constitutional republicanism and an emerging democratic order. Twice, Congress passed and states ratified amendments that redefined property rights: the 1913 Sixteenth Amendment and the 1919 Eighteenth Amendment. Private ownership has often been in tension with popular sovereignty, democracy, and the general welfare. How to strike an appropriate balance between these legitimate constitutional interests remains a challenge.

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