In this paper, Harvey M. Jacobs examines the conceptualization of private property rights in U.S. history and argues that the current private property rights system is unique and is constantly evolving. Current legal and political interpretations of individual property rights vis-à-vis the government’s ability to control these rights for the public good are shaped by specific historical and cultural experiences.
Starting in the colonial era, private land ownership was a major attraction to European migrants who tried to escape feudalism in Europe and sought freehold ownership in North America. Private property was viewed as a means to secure political and economic freedom. Therefore, private property symbolizes the political and ideological beliefs upon which the United States is founded, and strong constitutional protection of private property was deemed necessary.
When population, urbanization, and industrialization expanded in the twentieth century, the government began to limit individuals’ right to use and develop their lands. Conflicts over public rights in private land emerged. The courts were called upon to define and reinterpret the takings clause of the Fifth Amendment to the Constitution. Several Supreme Court cases found that the government has the legal right to expropriate private property for “public purposes” with “just compensation.” The courts also found that the government could constrain the use of private property without compensating the affected owners so long as its regulations did not amount to a taking. These legal decisions have been continuously challenged through political and social channels by private property rights advocates. As Jacobs asserts, disagreements over the meaning of private property rights allow the system to evolve and adapt to changing social, economic, and technological environments.
Given the unique process of private property evolution in the United States, to what extent is its experience transferable to other countries? Jacobs argues that the legal and social status of private property in the United States is converging with that in some Western European countries. Although the Western European countries started with a greater allocation of property rights to governments, recent changes in planning laws to accommodate a more market-oriented land management system and to uphold individual property rights have brought them closer to the U.S. system. As to the lessons for developing nations, Jacobs speculates that, like the United States, many countries may also experience ongoing challenges to and renegotiation of private property rights. The tension between the public right to manage scarce urban resources and individual entitlement to newly created wealth intensifies when the pace of urbanization and economic development accelerates.
This paper was presented at the Lincoln Institute’s annual Land Policy Conference in 2008 and is Chapter 3 of the book Property Rights and Land Policies.
