Property as a Constitutional Right in the Nineteenth Century: Or What Have We Learned Since Corwin?

The evolution of due process from an innocuous paraphrase ofthe old English concept "the law of the land" into a strongbastion of property rights until its curtailment in constitutionaldecisions in 1937 has been beautifully delineated in the writingsof Edward Corwin. Later writers have concentrated largely onextrapolating that history to cover the metamorphosis of propertiedliberty into personal rights, which has even required a modestrevival of property protection. Still, Corwin has been amendedon several key points. (1) We now understand that the nineteenth-centurybattle over property was not between property and persons, butbetween an older concept of "property as possession" and a dynamiccapitalist view of "property as creation of social value." (2)The transformation of "due process" in popular controversy,which Corwin was acute enough to advance as a factor, seemsto have been the most decisive factor, particularly alteringthe debate on the Fourteenth Amendment. (3) Corwin's searchfor a transforming case representing a decisive conceptual changeseems misplaced The complex economic-regulation due-processcases allowed a move from "procedure to substance" without anyvisible transformation of legal rules.     

American Federalism as American Exceptionalism

Americans paradoxically claim uniqueness for their politicalsystem, yet promote it as a model for others. This is especiallytrue of federalism, the clearest example of American exceptionalism.At its inception, American federalism was produced in an environmentclosely approximating what scholars have since distilled asoptimal conditions for fostering such a system. In other contexts,federalism has not flourished, because those preconditions areseldom approximated. Remarkably, American federalism has adjustedto meet drastically changed social, geographic, and politicalconditions, and the case for its continued adaptiveness andappropriateness remains strong. Although enclaved state differencesin economics and religion are no longer a reality, these andother differences are widespread especially on a regional basis.Even on a statewide basis, cultural mixes keep the country heterogeneous.The U.S. Constitution has been reinterpreted to permit rathermore nationalized control in accordance with this process ofeliminating differences. Indeed, this is to the point wherefederalism could become legally problematic, explaining theRehnquist court's recent decisions.