Has the fabric of American constitutional law been permanently "distorted" by the Framers' preoccupation with protecting private property against redistribution? Jennifer Nedelsky1 thinks so. In this provocative study of how the idea of property shaped the political thought of the Framers and the institutions they designed, she argues that James Madison's constitutional philosophy was driven by fear that a future propertyless majority would seek to expropriate the holdings of a minority. To combat this danger, Madison sought to create a structure of government that would ensure the dominance of the propertied elite. Madison's obsessive fear of redistribution spread to the newly created federal judiciary, which elevated private property to the status of a legal "boundary" limiting the political power of majorities. Although judicial protection of property has waned in recent decades, Nedelsky believes that Madison's legacy continues to limit our ability to construct a more egalitarian and participatory constitutional order.
Thomas W. Merrill,
Zero- Sum Madison,
Mich. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/289