Property, the Bill of Rights, and the Supreme Court

Materials:

• Handout A: English Origins of Property Protections
• Handout B: Samuel Adams, James Madison, and Property
• Handout C: The Bill of Rights and Property
• Handout D: The Takings Clause Up Close
• Handout E: Property and the Supreme Court
• Master F: Updates

This lesson requires two 50-minute class periods to complete.

Warm-up, Day One [5 minutes]

• Write the word “property” on the board and ask students how they would define the term. Write key terms and ideas on the board. Then ask students to brainstorm examples of property, continuing to record responses on the board.

Warm-up, Day Two [15 minutes]

• Distribute Handout D: The Takings Clause Up Close. Have students work in pairs or trios to examine the Fifth Amendment and answer the questions.
• Go over responses as a large group, keeping a list of “public uses” on the board or overhead. See the Answer Key for suggested responses.

Activity Day One [25 minutes]

• Distribute Handout A: English Origins of Property Protections. Display the excerpts from the Magna Carta and discuss the questions that follow. Do the same for the Blackstone and Locke documents. See the Answer Key for suggested responses.
• Explain in a mini-lecture that when the British colonists came to America, they brought with them a strong tradition of respect for property rights. Colonial governments enshrined protections for property and against arbitrary taxation in the Massachusetts Body of Liberties, the Fundamental Orders of Connecticut, and other documents. Property rights were one foundation of the colonists’ rallying-cry “No taxation without representation.” James Otis objected to the British officers’ use of general search warrants, declaring, “A man’s home is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle.” When the colonies declared independence from England, they charged the King with taxing them without their consent, seizing their ships, and denying them due process in Admiralty Courts. Students will now explore the writings of two important Founders, Samuel Adams and James Madison, on property rights. Their views were complex and varied, but Adams, Madison, and indeed all the Founders agreed that property rights were fundamental to liberty.
• Distribute Handout B: Samuel Adams, James Madison, and Property, and divide the class into groups of four. Have two students in each group read the excerpts from Adams’s The Rights of the Colonists and two read the excerpts from Madison’s Property.
• After they read, students should brief their group members on how each author used the word “property.”
• Reconvene the class and go over the questions on Handout B. See the Answer Key for suggested responses. Which definition(s) of property do students find most useful?

Activity Day Two [20 minutes]

• Cut out the scenario cards on Handout E: Property and the Supreme Court. Ask two students to come to the front of the room, assume the roles of the people on the first scenario card, and present the information to the class in role-play form.
• After students have finished presenting, conduct a large group discussion about the situation. Ask the class:
  • Is the situation described a “taking” of property?
  • Is the situation described a constitutional exercise of government power?
  • If so, what would be the best way to determine just compensation?
• Display Master F: Updates, and share with the class how the Supreme Court ruled on the case. Ask students to share their reactions to the ruling before moving on to the next scenario with two new student volunteers.
• Repeat this process until all three scenarios have been presented.

Wrap-Up Day One [20 minutes]

• Distribute Handout C: The Bill of Rights and Property, reminding students that Madison was the chief author of the Bill of Rights. Have students return to working in their groups to complete the Handout.
• After students have finished, assign each group to represent either “physical property” (e.g. material goods) or “the most sacred property” (e.g. conscience). Using an overhead of Handout C, read aloud the Bill of Rights. Have students stand up whenever they believe their “type” of property is being protected. See the Answer Key for suggested responses.
• As you proceed, pause when needed to debrief the class. Are there any instances where everyone is standing up? Are there times when no one is standing? What does this tell you about the property protections in the Bill of Rights?

Wrap-Up Day Two [15 minutes]

• As a large group, discuss the following questions:
  • In which case did the government attempt to take physical property? (Nollan v. California Coastal Commission, 1987)
  • In which case did the Court rule that a “taking” had occurred, even though no land was actually taken? (United States v. Causby, 1946)
  • In which case did the Supreme Court interpret “public use” as “public benefit”? (Kelo v. New London, 2005) Is there a difference?
  • How does the Kelo ruling differ from the other property rulings? Why do you think it has been a very controversial decision?
  • Is redevelopment through eminent domain the only way to revitalize a neighborhood? Is it the best way? What other methods can you think of?