The Objects of Property
In her illuminating book Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy , Jennifer Nedelsky parses the writings of the Federalists in order to explicate their theory of property and the fundamental role it played in their notion of political freedom. She emphasizes, as Grey does, that for the most part, the Federalists thought the concept of property was so self-evident that it did not need defining. Nevertheless, the examples they used of the potential oppression of property rights by an unjust political system provide strong evidence that their concept of property was not limited to the physical thing–sensuous grasping model Grey posits. They spoke of property rights not only in connection with land and the means of production—stock-in-trade, manufacturing plants, and so on—as one would expect in a thing-holding regime. They also spoke of property in moneylending and investment. They were not only concerned with the state's wresting of physical things from their owners' grasp. They were also concerned with more subtle "takings" that destroyed the value of intangible property such as inflationary monetary policies, the
printing of paper money, and bankruptcy legislation. That is, they feared government interference with the rights of enjoyment and alienation as well as possession.
My colleague, John O. McGinnis, who explores the natural-law aspects of the Framers' political theory, goes even further. According to McGinnis, both the Federalists and the anti-Federalists recognized property as the natural right of man. Related to this is the fact that other essential rights necessary for human liberty were justified precisely because they were forms of property rights. For example, James Madison argued for the freedoms of speech and religion on the express ground that each man has a natural property in "his opinions and the free communication of them" and in "the free use of his faculties and free choice of the objects on which to employ them."
In other words, although the Framers of the Constitution were not Hegelians, their writings clearly reflect the Western philosophical tradition which does not limit the potential objects of property to physical objects or property relations to the satisfaction of physical, or real, needs. Rather, the objects of property include everything other than the self. In the words of John Lilly, an eighteenth-century popularizer of Locke, "Every Man . . . hath a Property and Right which the Law allows him to defend his Life, Liberty, and Estate. . . ." And property relations are necessary in order for humans to constitute themselves as subjects who can seek to actualize their freedom. In other words, property relates to all that is proper to mankind.