Vanderbilt Law Review


Herman Belz

First Page



This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to the legal historian Harry N. Scheiber, are the public duties and obligations of property ownership, which give rise to the idea of economic liberty as a legal construct embracing "the whole of the citizenry and . . . the prosperity of the larger society." In contrast to this view, Professor Ely bases his constitutional history of property rights on the traditional concept of economic liberty as an attribute of individual rights that is essential to personal and political liberty. Maintaining a focus on the text of the Constitution as a standard of historical judgment within changing political, social, and ideological contexts, Ely employs a historical method that incorporates the perspective of the framer's intent and rejects the relativistic assumptions of liberal historicism.