The Guardian of Every Other Right: A Constitutional History of Property Rights / Edition 3

Paperback (Print)
Rent from
(Save 59%)
Est. Return Date: 08/02/2015
Buy Used
Buy Used from
(Save 39%)
Item is in good condition but packaging may have signs of shelf wear/aging or torn packaging.
Condition: Used – Good details
Used and New from Other Sellers
Used and New from Other Sellers
from $2.40
Usually ships in 1-2 business days
(Save 91%)
Other sellers (Paperback)
  • All (35) from $2.40   
  • New (27) from $4.64   
  • Used (8) from $2.40   


The Guardian of Every Other Right chronicles the pivotal role of property rights in fashioning the American constitutional order from the colonial era to the current controversies over eminent domain and land use controls. The book emphasizes the interplay of law, ideology, politics, and economic change in shaping constitutional thought and provides a historical perspective on the contemporary debate about property rights. Since publication of the original edition of this work, both academic and popular interest in the constitutional rights of property owners has markedly increased. Now in its third edition, this text has been revised to incorporate a full treatment of important judicial decisions, notable legislation, and scholarship since the second edition appeared in 1997. In particular, Ely provides helpful background and context for understanding the controversial Kelo decision relating to the exercise of eminent domain power for "public use." Covering the entire history of property rights in the United States, this new edition continues to fill a major gap in the literature of constitutional history and is an ideal text for students of legal and constitutional history.

Read More Show Less

Editorial Reviews

From the Publisher
Acclaim for previous editions
"An informative and balanced account of the history of property rights protections under the Constitution."—The American Journal of Legal History

Acclaim for previous editions
"This slender volume should serve well on reading lists both in introductory American history courses and in upper-division legal history or constitutional law courses."—The American Historical Review

Acclaim for previous editions
"Greatly clarifies the pivotal place of private property in the American system. Through a sophisticated historical analysis, Ely illuminates two recurring issues of great importance: the constitutional limits on government regulation of property and the complex relationship between property ownership and individual liberty."—Norman Dorsen, New York University School of Law

Acclaim for previous editions
"A wonderfully compact odyssey through the history of constitutional protection for property rights in this country. Tracing the winding evolution of Supreme Court decisions that affected the uses and enjoyment of property, as well as the government's attempts to regulate the same, Ely constructs a comprehensive, yet surprisingly readable examination of the issues."—The Journal of Southern History

David Schultz
Ely's book is part of Oxford University's bicentennial essays on the Bill of Rights and it offers opportune reconsidera- tion of the constitutional status of property rights in America at a time when property rights are yet again receiving serious reconsideration by the Supreme Court. This book offers a good short history of "economic and property rights from the settlement of America to the present" (p. 9). The author argues three propositions that provide the analytical framework for the book. First, that the Founders envisioned some type of judicial protection of property rights. Second, that the relegation of property rights to a secondary status is not warranted and that the Framers did not intend to distinguish property and personal rights in the way the Post CAROLENE Products (1938) Court apparently does. Third, that the Framers understood that property rights were not absolute and that they would need to be limited in some way. Additionally, two other conclusions emerge out of Ely's book. First, that while the Constitution and the judiciary do value property rights, the exact type of property favored at a particular time in history is influenced by a variety of politi- cal-economic factors. Second, that the Court may yet again place more emphasis upon property rights, but not to the degree that it did prior to the New Deal. In using the first three points to frame the book, Ely first provides a brief introduction to the influence of British proper- ty rights discourse upon colonial America. Ely notes the impor- tance of Locke and Blackstone upon the Founders and indicates how they saw property as an important political concept associated with individual liberty. Particularly interesting in this opening discussion is the claim that the Framers originally felt that property could be protected through the normal operations of the political process, but that the introduction of the Fifth Amendment and assumption of judicial review of economic claims meant that property was promoted to a substantive value that deserved special institutional protection beyond the normal political means. Thus, after setting the intellectual background, the author does a solid job in discussing how the contract, the 14th Amend- ment due process, and the Fifth Amendment eminent domain Clauses ("...nor shall private property be taken for public use without just compensation") were subsequently appealed to at various Page 36 follows: times in American history to protect property rights. Ely reviews the Marshall Court's expansive use of the Contract Clause to protect property interests and also discusses Justice Field's dissent in the SLAUGHTERHOUSE CASES to show how it became the precedent for subsequent liberty of contract and substantive due process adjudication. The book also offers a good discussion of the growing importance of the Fifth Amendment eminent domain clause. Ely is correct to note that it has become the last major constitutional provision used to protect property, and he also addresses briefly how conservatives such as Richard Epstein and Stephen Macedo have sought to reinvigorate property rights claims in it and in the process limit the regulatory functions of the state. Finally, the book provides an overview of the constitutional status of property rights since 1938. In this discussion Ely reminds the reader that despite the secondary status given to property, the Court, most notably in Justice Stewart's 1973 opinion in LYNCH V. HOUSEHOLD FINANCE, has be uncomfortable in completely distinguishing property from personal rights and that there is a connection between the two. There is clearly much to commend in this book, especially in its attempt to provide a short review of an important subject. However, this book is not intended to be an exhaustive or highly original discussion of property rights and the Constitution. This book, as with the other books in this Cambridge Series, are meant to be introductory monographs on a particular Bill of Rights subject. This book is more suited to undergraduates, general audiences, and those lacking a background in this area. However, serious property rights scholars will find the book helpful, but not original. Given the limited scope of the book, many criticisms about what the book has omitted are ill-placed; however, there are a few criticisms worth noting. First, while Ely generally provides a good discussion of the intellectual background on American views on property, he glosses over the differences between Locke and Blackstone. While Black- stone certainly was influenced by the former, Blackstone's approach to property provided the judiciary with legal arguments to buttress its property rights decisions. Noting how Blackstone appreciated the legal limits on property could explain why or how property was open to more control than otherwise thought. Noting their differences would also support Ely's claim that the Found- ers did not envision property claims as absolute because Black- stone provides support for ways to limit property rights. Second, absent from this discussion is James Harrington and the republican tradition that associated property with power, individual liberty, and popular government. The republican tradition was an important Page 37 follows: influence on the Founders and this tradition could help to explain much of the subsequent property rights discourse in America and provide a stronger framing of how property in America has come to be associated with liberty, power, and popular government. Another area where the book is lacking is in assessing the future of Supreme Court property rights adjudication. While Ely does not see the Court returning to a pre-New Deal property rights jurisprudence, he underestimates the support property rights and substantive due process has on the Court. Scalia, especially in NOLLAN V. CALIFORNIA COASTAL COMMISSION, seemed prepared to reinvigorate heightened scrutiny for some property regulation. This 1987 case, along with FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH V. COUNTY OF LOS ANGELES and the dissents in KEYSTONE BITUMINOUS COAL ASSOCIATION V. DEBENEDICTIS in the same year are all indications that a conservative Court is becoming more supportive of property rights and is willing to invoke the Fifth Amendment and the Contract Clause to limit property regula- tion. Finally, while perhaps beyond the scope of the book, Ely could have used his conclusion to better place property rights adjudication within the larger content of judicial treatment of property and personal rights. More attention could have been devoted to noting increased judicial support of property rights at a time when support for personal civil rights was decreasing. Speculating on this matter could have raised more suggestive questions about the property/personal rights dichotomy in the Constitution, and it could have made a fine book even more prophetic on the status of property rights in the 1990s.
Read More Show Less

Product Details

  • ISBN-13: 9780195323337
  • Publisher: Oxford University Press, USA
  • Publication date: 11/28/2007
  • Series: Bicentennial Essays on the Bill of Rights Series
  • Edition description: New Edition
  • Edition number: 3
  • Pages: 240
  • Product dimensions: 8.10 (w) x 5.50 (h) x 0.90 (d)

Meet the Author

James W. Ely, Jr. is Milton R. Underwood Professor of Law and Professor of History at Vanderbilt University. He is the author or editor of sixteen books, including Ambivalent Legacy: A Legal History of the South (1984), An Uncertain Tradition: Constitutionalism and the History of the South (1989), The Bill of Rights in Modern America: After 200 Years (1993), The Chief Justiceship of Melville W. Fuller, 1888-1910 (1995), and Railroads and American Law (2001).

Read More Show Less

Table of Contents

Editor's Preface
1. The Origins of Property Rights: The Colonial Period
2. The Revolutionary Era, 1765-1787
3. "Property Must Be Secured": Establishing a New Constitutional Order
4. The Development of Property Rights in the Antebellum Era, 1791-1861
5. The Gilded Age and the Challenge of Industrialization
6. Progressive Reform and Judicial Conservatism, 1900-1932
7. The New Deal and the Demise of Laissez-Faire Constitutionalism
8. Property Rights and the Regulatory State
9. Epilogue
Bibliographical Essay
Index of Cases

Read More Show Less

Customer Reviews

Be the first to write a review
( 0 )
Rating Distribution

5 Star


4 Star


3 Star


2 Star


1 Star


Your Rating:

Your Name: Create a Pen Name or

Barnes & Review Rules

Our reader reviews allow you to share your comments on titles you liked, or didn't, with others. By submitting an online review, you are representing to Barnes & that all information contained in your review is original and accurate in all respects, and that the submission of such content by you and the posting of such content by Barnes & does not and will not violate the rights of any third party. Please follow the rules below to help ensure that your review can be posted.

Reviews by Our Customers Under the Age of 13

We highly value and respect everyone's opinion concerning the titles we offer. However, we cannot allow persons under the age of 13 to have accounts at or to post customer reviews. Please see our Terms of Use for more details.

What to exclude from your review:

Please do not write about reviews, commentary, or information posted on the product page. If you see any errors in the information on the product page, please send us an email.

Reviews should not contain any of the following:

  • - HTML tags, profanity, obscenities, vulgarities, or comments that defame anyone
  • - Time-sensitive information such as tour dates, signings, lectures, etc.
  • - Single-word reviews. Other people will read your review to discover why you liked or didn't like the title. Be descriptive.
  • - Comments focusing on the author or that may ruin the ending for others
  • - Phone numbers, addresses, URLs
  • - Pricing and availability information or alternative ordering information
  • - Advertisements or commercial solicitation


  • - By submitting a review, you grant to Barnes & and its sublicensees the royalty-free, perpetual, irrevocable right and license to use the review in accordance with the Barnes & Terms of Use.
  • - Barnes & reserves the right not to post any review -- particularly those that do not follow the terms and conditions of these Rules. Barnes & also reserves the right to remove any review at any time without notice.
  • - See Terms of Use for other conditions and disclaimers.
Search for Products You'd Like to Recommend

Recommend other products that relate to your review. Just search for them below and share!

Create a Pen Name

Your Pen Name is your unique identity on It will appear on the reviews you write and other website activities. Your Pen Name cannot be edited, changed or deleted once submitted.

Your Pen Name can be any combination of alphanumeric characters (plus - and _), and must be at least two characters long.

Continue Anonymously

    If you find inappropriate content, please report it to Barnes & Noble
    Why is this product inappropriate?
    Comments (optional)