Andrew Allard '25
Executive Editor
Christina Martin says that a Supreme Court opinion from last term shows that the justices are interpreting property rights through the lens of natural law. Martin suggested the court’s opinion in Tyler v. Hennepin County[1] recognized a property interest so obvious that it could not be resisted. “It pretty much doesn’t matter what history was, what state law is. The mind rebels at it. We all reject this.”
Martin, a senior attorney at the Pacific Legal Foundation, recently made her debut oral argument before the Supreme Court, winning a unanimous opinion for the petitioner. Martin recapped the case and interpreted the court’s opinion at an event hosted by the Federalist Society at UVA Law last Wednesday.
The facts of the case made for an unsurprising unanimous decision. Martin’s client, Geraldine Tyler, is a 94-year-old condo-owner in Hennepin County. Ms. Tyler had accumulated $15,000 in unpaid property taxes, and the County seized and sold Ms. Tyler’s condo for $40,000. But rather than returning the $25,000 excess to Ms. Tyler, the County kept all of the proceeds for itself. This practice, which Martin and others have called “home equity theft,” was decisively rebuked by the Court.
The question posed by the case is deceptively simple: Was the County’s taking of the surplus $25,000 unconstitutional? But underlying that question is a much more complex one: Where does property come from? Is it a bundle of rights protected by state law? Or does property have an “irreducible core” which states are bound to respect? And as Justice Roberts asked at oral argument, “[I]f there is an irreducible core to the property, where does that come from?”
Recalling the oral argument, Martin explained: “Without saying it, I was essentially trying to say that it comes from natural law. The Declaration of Independence says that we all have certain unalienable rights, and this I believe is one of them . . . Property is something—it existed before government. Government exists in part to protect it.”
As defined in Black’s Law Dictionary, natural law is “a philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action.” As Martin notes, natural law had a significant influence on the American founding. And its history goes much further—to the roots of Western civilization.
But if the justices had anything to say about natural law, like Martin, they did not say so overtly. Nor did the justices opine on human nature. Instead, writing for the court, Chief Justice Roberts offered a more familiar answer: history and tradition. Relying on sources from the Magna Carta to 18th century state laws, the court found broad consensus that “government could not take more property than it was owed.”[2]
The problem with a natural law gloss on the court’s opinion does not stop at the text of the opinion itself. Anglo-American property law traditions, as it turns out, are not a universal aspect of human society. On the contrary, some hunter-gatherer societies think of property in a way that is entirely unfamiliar. And given that foraging is “the original condition of humankind and 90 percent of human history,”[3] it is arguably a much better reflection of human nature than modern American society.
Anthropologists have observed a custom of reciprocity in some hunter-gatherer societies called “demand sharing.”[4] One such anthropologist, James Suzman, lived with and studied the Ju/’hoansi people in Namibia for more than two decades.[5] In an article for the anthropology magazine Sapiens, Suzman describes how foreign the practice seems to a Western observer. “Where we usually consider it rude for others to ask unashamedly for something that we own or to just expect to receive it, the Ju/’hoansi considered this normal. More so, as far as they were concerned, denying someone’s request ran the risk of being sanctioned for selfishness.”[6]
Despite what this practice might suggest, the Ju/’hoansi still recognize private ownership. But the rights of the owner are much more limited. “The net result of this was that, while private property was respected—after all, if there is no private property, how could you enjoy giving or receiving a gift?—material inequalities were quickly ironed out.”[7]
Of course, one group’s cultural practices cannot inform an entire theory of human nature, nor should it be the basis of American property law. The fact that hunter-gatherers’ lifestyles are arguably more “natural” does not mean that every American must practice demand sharing. Rather, these radically different customs are a reminder that observations about human nature are just that—observations. If there comes a day when we can discern universal behavior from those observations, perhaps we will have a basis for a natural law of property. But for now, human societies remain stubbornly diverse and unsusceptible to such broad generalizations.
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tya2us@virginia.edu
[1] 598 U.S. 631, 143 S. Ct. 1369 (2023).
[2] Id. at 641.
[3] Richard B. Lee & Richard Daly, The Cambridge Encyclopedia of Hunters and Gatherers 3 (1999).
[4] See e.g., Nicolas Peterson, Demand Sharing: Reciprocity and the Pressure for Generosity Among Foragers, 95 Am. Anthropologist 860 (1993).
[5] James Suzman–About, https://www.fromthebush.com/about (last visited Oct. 29, 2023).
[6] James Suzman, Why Envy Might Be Good for Us, Sapiens (June 21, 2018), https://www.sapiens.org/culture/hunter-gatherer-inequality-namibia/.
[7] Id.