Thursday, April 15, 2010

Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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Really interesting project, Mark -- the phrasing of Clay's argument makes it sound remarkably positivist. Though I take it that the corollary is not "and whatever the law declares is not property, is not property."

One person tried that in the Virginia legislature in 1832, with very little success. Southerners more generally throughout the antebellum period subscribed to the idea that property was antecedent to positive law and that the legislature could not just declare something (or someone) "not property."

Another good way to get at some of this is through Chief Justice Marshall's opinion in The Antelope. I blogged a little about it here at property prof a long time ago:

Posted by: Alfred | Apr 15, 2010 6:27:06 PM

Very thought-provoking and useful posts, Mark & Al. Of course, both philosophers and pro-slavery advocates had offered a number of "natural law" justifications for slavery throughout the centuries.

This leads to an interesting question about whether moral thinking/understanding or social norms/practices or both have to evolve in order for the law to eliminate injustice. This is a basic tension in methodological focus between the humanities and the social sciences. And we see the same issues arise in religion: those who think the problem is individualimmorality and those who think the problem is social injustice, although both get plenty of attention in sacred texts.

If justice can reside persistently in human hearts and minds and in social institutions and structures, is the law the pathway from injustice to justice? Is property law the way to improve natural-law thinking and reform positivist formulations?

I admit to being a litle skeptical about the centrality of the law and legal theories (whether natural or positivist) to end deep-seated wrongs like slavery. Mark's classroom exercise with the Henry Clay argument and Al's post about The Antelope case have helped me to think about new ways to get students to think more critically about the morality of the legal positivist perspective. Thanks!

Posted by: Tony Arnold | Apr 16, 2010 8:40:25 AM

Mark, as Al and Tony mentioned, this is a great post and a great teaching idea. As you, Al, and Tony all suggest, there are many potential sources of conflict between positive accounts of law and normative justifications for law. There is an overwhelming case that Clay was right from the positive perspective -- slaves were property, in the positive sense, prior to emancipation. There are also a number of good arguments that the Takings Clause should protect property as defined by positive law - among other things, the Takings Clause protects expectations that are created by positive law. And, putting the two together, there is an argument that the Takings Clause should apply to emancipation. This might be a shocking conclusion to current law students, but it wouldn’t have been to many early Americans. As Bill Treanor and others have noted, James Madison, the author of the Takings Clause, stated in private correspondence that in his view the Takings Clause would apply to the abolition of slavery. My less-than-expert understanding is that the compensation issue was raised fairly frequently in debates about abolition and about the legality of the emancipation proclamation.

So what to do with all of this? My sense is that there are two important points to make. First, positive law can be immoral. So slaves were property in the positive sense, but this legal rule was immoral. Sure, sources of moral rules are contested, but pretty much any contemporary account of morality views slavery as a grave wrong. That said, as suggested above there is a case (not necessarily an overwhelming one) that the compensation requirement should apply regardless of the morality of the property being protected. Second, even if the Takings Clause required compensation for emancipation, this requirement was trumped by the later-enacted Thirteenth Amendment, which prohibited slavery without compensation to slaveowners. So abolition of slavery by some legal mechanism short of constitutional amendment might have triggered the compensation requirement, but that problem was avoided by the Thirteenth Amendment. From a larger perspective, slavery is the constitution’s original sin; this sin is cured by the Thirteenth Amendment.

Posted by: Ben Barros | Apr 16, 2010 1:45:46 PM

Thank you all for the excellent comments.

Al, I think you are right that Clay's provocative claim is strikingly positivist. I imagine Clay thought of slavery in a post-emancipation world as something like a non-conforming use -- a type of property, but one that's use had been rendered invalid by the state, and thus requiring compensation to the owners. I think it is that positivism, and the resistance to and rejection of the influence of 'natural law' sentiments, that informs Marshall's decision in The Antelope case as well. But perhaps that gives Clay too much credit; he certainly would not have been alone, as Tony suggests, if he considered slavery the product of natural law, rather than a defiance of it.

Tony, your question about the relationship between the evolution of norms and law goes straight to the heart of one article I recently completed, and one I am currently working on. In the one I recently finished, I posit that generally, we should expect to see norms of behavior regarding property change first, law second. Moreover, there are predictable dangers to watch for if law and norms remain divergent for too long (without boring you with too much detail, file-sharing is an interesting example of the phenomenon). In the one I'm working on, I argue that if norms change but law does not, that may be the result either of some particular forms of political or legal malfunction, or it may be because courts are fulfilling their institutional role in protecting normatively unacceptable behavior that is a fundamental right. Ironically, and it makes me uncomfortable to say this, I think in some ways that was how defenders of slavery such as Clay saw the proper role for courts in response to the popular success of the abolitionist movement: protecting the fundamental property rights of slave owners to engage in normatively unacceptable behavior against the will of the majority.

Ben, I think you're right that as a matter of purely positive law, Clay's got the better argument. One of the things that makes his speech such a great teaching tool is that my students tend to take a skeptical view of unenumerated rights -- it's very easy, after all, to bash the penumbra. It fits neatly into the popular narrative of over-reaching courts. But they also want to reject Clay's argument. When I defend Clay's position, they tell me I'm wrong by arguing, essentially, that there's something greater than law, or rather that the law is greater than simply what the law at any particular time says. It's a great moment, having lead them down that path, to remind them of their objections to unenumerated rights. Suddenly, recognizing the right of privacy does't seem so over-reaching -- in fact, it seems somewhat libertarian, defending 'natural' rights that are beyond the power of governments to define or limit.

I think you're right that the 13th Amendment was the textual cure to the Constitution's original sin (at least its greatest one). But I'm not sure that answers Clay's objection, if we frame it as a nonconforming use argument: curing sin is all well and good, but compensation is owed. To retort that, for example, compensation has already been paid in free labor, or that we should compensate the slaves first, is to take that first step of agreeing that humans were, in fact, property, since the issue of compensation only becomes relevant if they were. That's a step my students refused to take, regardless of what the positive law told them.

It's a fascinating problem.

Posted by: Mark Edwards | Apr 17, 2010 11:26:05 PM

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