Ilya Somin at Volokh Conspiracy: A Real Live Violation of the Third Amendment (discussing Tom Bell’s new article Property in the Constitution: A View from the Third Amendment).
Here is Professor Bell’s abstract from SSRN:
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate – land, fixtures attached thereto, and related rights – but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.
Professor Bell is a non-originalist textualist (see here), so perhaps this doesn’t count as originalism. But it continues a theme of obscure constitutional clauses (see bill of attainder discussion here), and the article raises an important point about the meaning of “property” in different parts of the Constitution.
Moreover, I would say that Bell’s modern textualism and text-based originalism (or what I have called “historical textualism”) often point in the same direction, at least as a presumptive matter. Words do often change meaning over time – but often they don’t. Although I haven’t looked at the matter closely, my impression is that eighteenth- (or nineteenth-) century definitions of “property” resemble modern ones, at least in the sense of recognizing the categories “real property” and “personal property.” That being so, it would take some very strong evidence to convince me that “property” in the Constitution (a) meant something different in different places within the text, or (b) meant only real property, not personal property.
UPDATE: Tom Bell writes in response:
It turns out that the paper does make a couple of originalism-specific points. First, that the meaning of "property" arguably changed between the ratification of the due process clause of the 5th and the due process clause of the 14th, as copyrights and patents had become to get labeled as such by the 1860s. Second, from an originalist point of view, Scalia (of all people) got matters exactly backwards in Lucas [v. South Carolina Coastal Council] when he opined that the Takings Clause protects real property more completely than it does personal property. In fact, as the paper discusses, evidence suggests that the Takings Clause was enacted with the latter more in mind than the former.
I'm generally on board with Tom here, but (once again) I'll defend Scalia. I don't think in Lucas Scalia was making an originalist claim; he was distinguishing a prior precedent. Here's the passage from Scalia's majority opinion in Lucas (p. 1027):
[O]ur "takings" jurisprudence … has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over, the "bundle of rights" that they acquire when they obtain title to property. . . . And in the case of personal property, by reason of the State's traditionally high degree of control over commercial dealings, he ought to be aware of the possibility that new regulation might even render his property economically worthless (at least if the property's only economically productive use is sale or manufacture for sale). See Andrus v. Allard, 444 U.S. 51, 66-67 (1979) (prohibition on sale of eagle feathers). In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.
I take it the point of this discussion is to distinguish Andrus v. Allard, where the property owner lost the total economic value of personal property, from Lucas, where the property owner lost the total economic value of real property. Consistent with Scalia's view of precedent (see here and here), I don't think that means he thinks Andrus v. Allard was right as an original matter. (My guess is he doesn't). And in any event, this discussion is about regulatory takings, not physical takings, so the originalist basis for a constitutional rule is weaker, and it's not necessarily indicative of whether personal and real property are treated the same for physical takings purposes. So I'm not sure Scalia would disagree with Tom's assessment of the original meaning.
Posted at 4:30 PM