Property Law, Expropriation, and Resource Allocation by Government: the United States, 1789–1910

Abstract

Expropriation of private property by government is seldom found on the list of policies which have influenced the course of economic development in American history. To be sure, the once-vigorous myth of antebellum laisser-faire has been discarded; and it is no longer taken as a startling proposition that governmental interventions to promote and regulate the economy occurred regularly throughout the nineteenth century. But for two reasons, I think, expropriation as an instrument of conscious resource allocation has failed to receive from historians the attention it deserves.

United States Experience

“…Prominent among these "legal subsidies" to private parties was the grant of the government's eminent domain powers, which allowed the expropriation of private property when necessary for a "public use" or "public purpose. "6 Despite their usual protection of vested rights, the courts supported this legislative policy because of the shared conviction that economic growth was a "public purpose" regardless of the dis tributional consequences (Scheiber, 1973;Scheiber and McCurdy, 1975). By the end of the century, however, legal policies of this sort had resulted in such concentration of economic and political power, and therefore social tension and inequality, that reform movements were able to modify the legal system in the direction of increased public regulation (Hurst, 1956).…”

Ownership: An Overview1

“…In summary, because the Constitution grants Congress sweeping authority with respect to the expansion or reduction of public land (Harvey 1984), federal lands in the United States have fluctuated greatly with time. Following the early period of acquisition, annexation, and seizure, the federal government conveyed its lands to soldiers in payment for military service (Oberly 1990), to homesteaders to populate western frontiers (Gates 1980), and to corporations and utilities to stimulate investment and infrastructure (Scheiber 1973). More recently federal ownership, spirited by public mandates to protect additional land for aesthetic, recreational, and environmental reasons, has challenged the sacredness ofprivate tenure as the highest and best use ofland.…”

Property, policy and politics: towards a theory of urban land‐use conflict

“…Further, the judiciary's early role as guardian of property relations meant that when the historical conditions of accumulation changed in the nineteenth century when the US assumed a profoundly greater commitment to full-blown industrial capitalist expansioncourts and judges were historically positioned to preside over the needed changes in landed property rights. In a very real way, the judiciary then supervised a legal accommodation of landed property rights to the requirements of rapid, lowcost accumulation (Horwitz, 1977;Schreiber, 1973).…”