The Global Debate over Constitutional Property

Lessons for American Takings Jurisprudence

Gregory S. Alexander

The Global Debate over Constitutional Property
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Gregory S. Alexander

288 pages | 6 x 9 | © 2006
Cloth $42.50 ISBN: 9780226012988 Published July 2006
Countries around the world are heatedly debating whether property should be a constitutional right. But American lawyers have largely ignored this debate, which is divided into two clear camps: those who believe making property a constitutional right undermines democracy by fostering inequality, and those who believe it provides the security necessary to make democracy possible. In The Global Debate over Constitutional Property, Gregory Alexander recasts this discussion, arguing that both sides overlook a key problem: that constitutional protection, or lack thereof, has little bearing on how a society actually treats property.

A society’s traditions and culture, Alexander argues, have a much greater effect on property rights. Laws must aim, then, to change cultural ideas of property, rather than deem whether one has the right to own it. Ultimately, Alexander builds a strong case for improving American takings law by borrowing features from the laws of other countries—particularly those laws based on the idea that owning property not only confers rights, but also entails responsibilities to society as a whole.

“The Global Debate over Constitutional Property offers a rich comparative perspective on an important topic, and its insightful analysis produces a set of significant suggestions for reform. Illuminating and profound, the book moves seamlessly between property theory and comparative law in a way that enriches both disciplines.”—Hanoch Dagan, Tel Aviv University



“The Global Debate over Constitutional Property is a superbly executed and compelling account of the transnational and transcultural issues involved in property law and property theory. For too long, American property law has been effectively insulated from external review or comparative critique. This book forces us to rethink what American property law is all about. It presents a powerful counterargument to those who maintain that in crafting a property regime, we need not look beyond our borders.”—Laura Underkuffler, Duke University



“This book is a thoughtful exploration of the divergent approaches taken in other countries to the question of property rights and constitutional law. The project in which it is engaged is important and valuable. It will be a real contribution, likely to spark debate and response.”—Vicki C. Jackson, Georgetown University



"To say that [Alexander's book] is an important and intreesting work would be a gross understatement. The questions of whether (and how) to grant constitutional status to the right of property, and how courts ought to interpret such provisions, raise core issues in contemporary constitutionalism and political economic development. . . . The breadth and depth of coverage and analysis, combined with its thoughtful and provocative arguments, render this book a highly stimulating and informative read."—Michael C. Evans, Law & Politics Book Review


Contents
Preface / ix
Acknowledgements / xiii

Introduction / 1

ONE / The Formalist Trap: Text and Tradition in the Interpretation of Consitiutional Property Clauses / 23

TWO / The Aborted Revolution in American takings Law / 63

THREE / Constitutionalizing the Social Obligation of Ownership: The German Example / 97

FOUR / From Social Obligation to Social Transformation? South Africa's Experience with  Constitutional Property / 149

FIVE / Lessons for American Takings Jurisprudence / 199

Conclusion / 245
Notes / 249
Index / 313
For more information, or to order this book, please visit http://www.press.uchicago.edu
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Law and Legal Studies: International Law | Law and Society | The Constitution and the Courts

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