Zero-Sum Madison

Merrill, Thomas W.

The ultimate message of Nedelsky's book is that private property is a social institution, collectively defined and collectively enforced. Property is of course a social institution, not a natural right. But there is no inherent contradiction, as Nedelsky seems to believe there is, between the idea that property is a social institution and the idea that the law - another social institution - should protect reliance interests associated with specific property rights. Property is a social institution in the sense that it emerges from customary forms of interaction among people with respect to specific material resources, and then is defined and protected against private interference by state law. The constitutional protection of property is also a social institution, but it involves a different source of law (the federal Constitution rather than state law), different institutional actors (ultimately the federal courts), and different objectives (protecting specific entitlements against public rather than private interference). Thus, the fact that both processes are "social" does not mean that they collapse into a single undifferentiated mass. Moreover, neither the social origins of property as an institution, nor the social nature of the constitutional protections we recognize, tells us much about what collective measures may be adopted (at either the state or the federal level) to reallocate relative shares of fungible wealth. We are fortunate that the Founders of our nation, most prominently James Madison, understood these distinctions. What is puzzling is that so many contemporary American academics would like to obscure them.


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Michigan Law Review

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Michigan Law Review Association
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November 13, 2015