Amicus Curiae Brief — Arron Benedetti, et al., Petitioners v. Marin County, California, et al.

Supreme Court briefJun 1, 2026

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No. 25-1241

In the Supreme Court of the United States

ARRON BENEDETTI, ET AL.,

Petitioners,

MARIN COUNTY, CALIFORNIA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the Court of

Appeal of the State of California First Appellate District

BRIEF OF AMICI CURIAE ADVANCING AMERICAN FREEDOM;

AMERICANS FOR FAIR TREATMENT; RIO GRANDE

FOUNDATION; TAXPAYERS PROTECTION ALLIANCE; TEA

PARTY EXPRESS; RUSSEL KIRK CENTER FOR CULTURAL

RENEWAL; ASSOCIATION OF MATURE AMERICAN CITIZENS;

SHAWNNA BOLICK, ARIZONA STATE SENATOR, DISTRICT 2;

FRONTIERS OF FREEDOM; CHARLIE GEROW, FORMER VICE

CHAIRMAN, AMERICAN CONSERVATIVE UNION;

INTERNATIONAL CONFERENCE OF EVANGELICAL CHAPLAIN

ENDORSERS ; JCCWATCH.ORG; TIM JONES, FORMER

SPEAKER, MISSOURI HOUSE, FOUNDER, LEADERSHIP FOR

AMERICA INSTITUTE; MEN AND WOMEN FOR A

REPRESENTATIVE DEMOCRACY IN AMERICA, INC;

PAUL STAM, FORMER SPEAKER PRO TEM, NC HOUSE OF

REPRESENTATIVES; TRADITION, FAMILY, PROPERTY, INC.;

AND HON. WILLIAM WAGNER (RET), DISTINGUISHED

PROFESSOR OF LAW EMERITUS IN SUPPORT OF PETITIONERS

J. Marc Wheat

Counsel of Record

Timothy Harper (Admitted in DC)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W., Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancingamericanfreedom.com

June 1, 2026

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether Marin County may, under its power to

promote the public health, safety, morals, or general

welfare, compel private landowners to enter and

permanently remain in a government-chosen

occupation as a condition of a residential development

permit?

2. Whether the Due Process Clause of the

Fourteenth

Amendment—which

protects

the

fundamental right to “engage in any of the common

occupations of life,” Meyer v. Nebraska, 262 U.S. 390,

399 (1923)—also encompasses the fundamental right

not to be forced into an occupation of the government’s

choosing?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF CITED AUTHORITIES ......................... iii

STATEMENT OF INTEREST OF AMICI CURIAE .... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ......................................................... 2

ARGUMENT ................................................................ 4

The Right to Property Extends Down to the

Foundation of Western Civilization ..................... 7

II. The Right to Property is Essential to American

Liberty ................................................................. 14

CONCLUSION .......................................................... 21

iii

TABLE OF CITED AUTHORITIES

Cases

Page(s)

Chisholm v. Georgia,

2 U.S. 419 (1793) ................................................... 9

Collins v. Virginia,

584 U.S. 586 (2018) ............................................. 21

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) ....................... 19

Dolan v. City of Tigard,

512 U.S. 374 (1994). .......................................... 6, 7

Florida v. Jardines,

569 U.S. 1 (2013) ................................................. 20

Georgia v. Randolph,

547 U.S. 103 (2006) ............................................. 21

J.E.D. Assocs., Inc. v. Atkinson,

121 N.H. 581 (N.H. 1981) ..................................... 6

Kelo v. City of New London,

545 U.S. 469 (2005) ..................................... 2, 4, 15

Koontz v.

St. Johns River Water Management District,

570 U.S. 595 (2013) ............................................... 6

Lange v. California,

594 U.S. 295 (2021) ............................................. 20

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................... 4

Meyer v. Nebraska,

262 U.S. 390 (1923) ........................................... 2, 3

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ....................................... 5, 6, 7

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) ............................................. 13

Constitutional Provisions

U.S. Const. amend. II .................................................. 4

U.S. Const. amend. IV ............................................... 20

U.S. Const. amend. XIII ............................................ 18

U.S. Const. amend. XIV ............................................ 13

Statutes and Regulations

CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866)

(statement of Sen. Howard) ................................ 20

The Virginia Declaration of Rights § 1 ..................... 17

Other Authorities

1 Adam Smith, An Inquiry into the Nature

and Causes of the Wealth of Nations,

15 (The Liberty Fund 1981) (1776) .................... 11

1 The Founders’ Constitution

(The Liberty Fund 1987) ..................................... 13

Aristotle, Nicomachean Ethics 101

(Bartlett and Collins trans.,

University of Chicago Press, 2011) ...................... 8

Hadley Arkes, A Natural Law Manifesto or an

Appeal from the Old Jurisprudence to the New,

1268 Notre Dame L. Rev. 87 (2012) ..................... 9

Randy E. Barnett, Does the Original Meaning of

the Fourteenth Amendment Protect Economic

Liberty? 94 Miss. L. J. 1225 (2025)............... 18, 19

Randy E. Barnett, Three Keys to the Original

Meaning of the Privileges or Immunities Clause

43 Harv. J. of Law and Pub. Pol’y 1 (2020) ........ 17

Brief of Advancing American Freedom et al.,

The Babylon Bee, LLC v. Bonta, No. 25-6138

(9th Cir. Mar. 18, 2026) ...................................... 12

Brief of Amici Curiae Advancing American Freedom

et al., Carbin v. Massachusetts Board of State

Examiners of Plumbers and Gas Fitters,

No. 25-787 (Feb. 5, 2026) available at

https://advancingamericanfreedom.com/aaffights-for-property-rights-it-should-not-be-illegalfor-homeowners-to-fix-their-own-homes/ ............. 5

Edmund Burke, Reflections on the Revolution in

France 88 (Regnery Co. 1955) (1790) ................. 10

Donald J. Devine, Ronald Reagan’s Enduring

Principles: How They Can Promote Political

Success Today 146 (The Fund for American

Studies 2023) ....................................................... 12

Richard A. Epstein, Supreme Neglect: How to Revive

Constitutional Protection for Private Property

1 (Oxford Univ. Press 2008)................................ 14

Richard A. Epstein, Takings 22

(Harvard University Press 1985) ....................... 15

Samuel Fleischacker, Adam Smith’s Reception

Among the American Founders 59 William

and Mary Quarterly 897 (2002) .......................... 11

Letter from Thomas Jefferson to Charles Yancey, in

George H. Nash and Timothy G. Nash, Books and

the Founding Fathers: And Their Influence on

America Today 69

(Northwood Univ. Press 2026)............................ 16

John Locke, The Two Treatises of Civil Government

107 (Liberty Fund, Hollis ed. 2011) (1689)

available on https://oll-resources.s3.us-east2.amazonaws.com/oll3/store/titles/222/Locke_005

7_EBk_v6.0.pdf ................................................... 10

Mike Pence, Ed Feulner,

Rediscovering Order in an Age of Populism,

National Affairs (2025) available at

https://www.nationalaffairs.com/publications/det

ail/rediscovering-order-age-populism ..............9-10

Neal Wood, The Economic Dimension of Cicero’s

Political Thought: Property and State,

16 Can. J. of Pol. Sci. 739 (1983) .......................... 9

Exodus 20:15 (New American Standard Bible) .......... 8

Edwin J. Feulner, Jr., Conservatives Stalk the

House: The Story of the Republican Study

Committee (Green Hill Publishers, Inc. 1983)..... 1

Samuel Fleischacker, Adam Smith’s Reception

Among the American Founders 59 William

and Mary Quarterly 897 (2002) .......................... 11

Friedrich A. Hayek, The Road to Serfdom (1944) ...... 3

Independence Index: Measuring Life, Liberty

and the Pursuit of Happiness, Advancing

American Freedom available at

https://advancingamericanfreedom.com/aaffindependence-index/.......................................... 1, 3

vii

Charles R. Kesler, California Has Become the

Far Left Coast, Wall Street Journal

(Mar. 6, 2019) ........................................................ 2

Russel Kirk, The Roots of American Order

(1st ed. 1977) ..................................................... 3, 7

Paul Larkin, The Original Understanding

of “Property” in the Constitution,

100 Marq. L. Rev. 1 (2016)............................ 14, 17

John Locke, The Two Treatises of Civil Government

107 (Liberty Fund, Hollis ed. 2011) (1689)

available on https://oll-resources.s3.us-east2.amazonaws.com/oll3/store/titles/222/Locke_005

7_EBk_v6.0.pdf ................................................... 10

W. McKechnie, Magna Carta, A Commentary

on the Great Charter of King John,

321-26 (rev. 2d ed. 1914) ..................................... 14

Timothy G. Nash, Books and the Founding

Fathers: And Their Influence on America

Today 69 (Northwood Univ. Press 2026) ........... 18

Mike Pence, Ed Feulner, Rediscovering Order

in an Age of Populism, National Affairs

(2025) available at

https://www.nationalaffairs.com/publications/det

ail/rediscovering-order-age-populism ..............9-10

Jack N. Rakove, Original Meanings: Politics

and Ideas in the Making of the Constitution

290 (1996) ............................................................ 17

David Schultz, Political Theory and Legal

History: Conflicting Depictions of Property

in the American Political Founding,

37 Am. J. Legal Hist. 464 (1993) ........................ 16

viii

Herbert J. Storing, What the Anti-Federalists

Were For: The Political Thought of the

Opponents of the Constitution 64

(Chicago Univ. Press 1981) ................................. 15

Senator Charles Sumner, The Landmark of

freedom. Speech of Hon. Charles Sumner,

against the repeal of the Missouri prohibition of

slavery north of 36° 30#. In the Senate, February

21, 1854 available at https://tile.loc.gov/storageservices/service/rbc/rbaapc/28500/28500.pdf ..... 18

The Federalist No. 54, at 285 (James Madison)

(George Carey & James McClellan eds.,

The Liberty Fund 2001) ...................................... 12

Neal Wood, The Economic Dimension of Cicero’s

Political Thought: Property and State,

16 Can. J. of Pol. Sci. 739 (1983) .......................... 9

STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom (AAF) is a

nonprofit organization that promotes and defends

policies that elevate traditional American values,

including freedom from arbitrary power. 1 AAF “will

continue to serve as a beacon for conservative ideas, a

reminder to all branches of government of their

responsibilities to the nation,” 2 and believes American

prosperity depends on ordered liberty and selfgovernment. 3 AAF files this brief on behalf of its

161,715 members nationwide including 13,358

members in the State of California.

Amici Americans For Fair Treatment; Rio Grande

Foundation; Taxpayers Protection Alliance; Tea Party

Express; Russel Kirk Center for Cultural Renewal;

Association of Mature American Citizens; Shawnna

Bolick, Arizona State Senator, District 2; Frontiers of

Freedom; Charlie Gerow, Former Vice Chairman,

American

Conservative

Union;

International

Conference of Evangelical Chaplain Endorsers ;

JCCWatch.org; Tim Jones, Former Speaker, Missouri

House, Founder, Leadership for America Institute;

1 All parties received timely notice of the filing of this amicus

brief. No counsel for a party authored this brief in whole or in

part. No person other than Amicus Curiae and its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

2 Edwin J. Feulner, Jr., Conservatives Stalk the House: The Story

of the Republican Study Committee, 212 (Green Hill Publishers,

Inc. 1983).

3 Independence Index: Measuring Life, Liberty and the Pursuit

of Happiness, Advancing American Freedom available at

https://advancingamericanfreedom.com/aaff-independence-index/.

Men and Women for a Representative Democracy in

America, Inc; Paul Stam, Former Speaker Pro Tem,

NC House of Representatives; Tradition, Family,

Property, Inc.; and Hon. William Wagner (Ret),

Distinguished Professor of Law Emeritus believe that

the right to property is central to American freedom.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

This case concerns fundamental rights recognized

in the Western tradition for millennia. The first is the

right to property, the security of which, according to

Alexander Hamilton, is “one of the ‘great obj[ects] of

Gov[ernment].’” Kelo v. City of New London, 545 U.S.

469, 496 (2005) (O’Connor, J., dissenting). The other is

the “the right of the individual to . . . engage in any of

the common occupations of life.” Meyer v. Nebraska,

262 U.S. 390, 399 (1923). Marin County, California

seeks to pit these rights against one another,

demanding that Petitioners choose between using

their property in a lawful way and subjecting

themselves and their land to a particular occupation.

The Court should grant certiorari and ensure that

Petitioners are not forced to choose between these two

fundamental rights.

Petitioners in this case are brothers Arron and

Arthur Benedetti, both plumbers. They inherited from

their father, a turkey farmer, 267 acres of

agriculturally zoned land in Marin County,

California. 4 Pet. at 1. Wishing to build a home on the

land for Arthur, an allowed use within the zoning,

4 Charles R. Kesler, California Has Become the Far Left Coast,

Wall Street Journal (Mar. 6, 2019).

they sought a permit to proceed with development. Id.

But Marin County refuses to issue the permit unless

the brothers agree to enter into a covenant on the land

committing to its perpetual agricultural use. Id. This

leaves the Benedettis with only three options: sell the

land, use it for commercial agriculture themselves or

lease it to someone else for commercial agricultural

use, or hold the land but not use it. In short, Marin

County seeks to reduce the Benedettis to serfs on their

own land. 5 All three of these choices impermissibly

burden Petitioners’ fundamental property and liberty

rights and thus are unconstitutional.

As Russel Kirk explains in his classic The Roots of

American Order, 6 western thought, the thought that

made America, stretches back through English,

Roman, Greek, and Hebrew history, as represented by

those civilizations’ most prominent cities. Through

Jerusalem, Athens, Rome, and London, property runs

as a consistent value of human liberty deserving

government’s protection. And “American liberty,”

including its recognition of the centrality of property

to human dignity, is “the longest lasting and most

dynamic force for culture, progress, and prosperity in

the history of the world.” 7

In the Anglo-American legal tradition, too,

property rights are critical. As the Founders, and later

the Framers and ratifiers of the reconstruction

amendments understood, property rights were an

5 See generally, Friedrich A. Hayek, The Road to Serfdom (1944)

(discussing the danger of economic central planning).

6 Russel Kirk, The Roots of American Order (1st ed. 1977).

7 Independence Index, supra note 3.

essential element of the individual liberty government

existed to secure.

Because Marin County’s permit requirement

undermines this long tradition of respect for property,

the Court should grant the petition for certiorari and

rule for Petitioners.

ARGUMENT

The inherent and inalienable right to property is

not a “second-class right.” In McDonald v. City of

Chicago, this Court declined the city’s request that the

Second Amendment “right recognized in Heller” be

treated “as a second-class right, subject to an entirely

different body of rules than the other Bill of Rights

guarantees that we have held to be incorporated into

the Due Process Clause.” 561 U.S. 742, 780 (2010).

In many ways, this Court’s jurisprudence has treated

the right to property as a second-class right, or worse. In

these areas, “[s]omething has gone seriously wrong

with this Court’s interpretation of the Constitution.” Kelo,

545 U.S. at 518 (Thomas, J., dissenting). Under the Court’s

precedent, “[t]hough citizens are safe from the government

in their homes, the homes themselves are not.” Id.

Marin County asks the Court to weaken property

rights even further.

When Americans want to exercise their property

rights by modifying their real property in some way,

they often are required to ask their local government’s

permission, granted in the form of a permit. 8 As such,

8 For example, in Massachusetts, John Carbin, a former Black

Hawk crew chief and a federally certified aircraft mechanic,

the government could exercise substantial control over

law-abiding citizens merely by withholding such

permits unless and until the property owner concedes

to some government demand.

In 1982, James and Marilyn Nollan wanted to

replace a 504 square foot bungalow in Ventura

County, California with a three-bedroom house.

Nollan v. California Coastal Comm’n, 483 U.S. 825,

827 (1987). However, when they applied for a permit

to do so, the California Coastal Commission responded

that it would grant the permit only if the Nolans

granted an easement to the public to cross the portion

of the beach they owned. Id. at 828. After a court

struck down the permit condition and remanded, the

Commission reimposed it because “[i]t found that the

new house would increase blockage of the view of the

ocean, thus contributing to the development of ‘a wall

of residential structures’ that would prevent the public

‘psychologically . . . from realizing a stretch of coastline

exists nearby that they have every right to visit.’” Id.

at 828-29.

This Court found that because the public

easement lacked an “essential nexus” to the alleged

government interest, “the building restriction [was]

recently challenged a local regulation under which permits to

perform plumbing work on one’s home is denied unless the person

doing the work is a licensed plumber. As a result, it is illegal for

homeowners who are not licensed to perform even basic plumbing

work on their own homes. Brief of Amici Curiae Advancing

American Freedom et al., Carbin v. Massachusetts Board of State

Examiners of Plumbers and Gas Fitters, No. 25-787 (Feb. 5, 2026)

available at https://advancingamericanfreedom.com/aaf-fightsfor-property-rights-it-should-not-be-illegal-for-homeowners-tofix-their-own-homes/.

not a valid regulation of land use but ‘an out-and-out

plan of extortion.” Id. at 837 (quoting J.E.D. Assocs.,

Inc. v. Atkinson, 121 N.H. 581, 584 (N.H. 1981)).

In Dolan v. City of Tigard, Florence Dolan, a

business owner in Tigard, Oregon wanted to expand

the building on her property that sat next to a local

creek. 512 U.S. 374, 379 (1994). The local government,

however, sought to condition a permit to do so, among

other things, on dedicating a 15-foot strip of her land

“as a pedestrian/bicycle pathway.” Id. at 380. It sought

to impose this condition because it “could offset some

of the traffic demand on nearby streets and lessen the

increase in traffic congestion,” predicted to be caused

by Dolan’s expansion. Id. at 381-82 (internal quotation

marks omitted) (alteration in original).

The Court concluded that the city would need to

show some evidence that its easement requirement

advanced its legitimate interest. Id. at 395-96.

Because it had done no more than offer a “conclusory

statement” in support of that claim, the easement

requirement lacked the “rough proportionality”

between the government interest and the burden on

property rights necessary for such a condition not to

violate the Takings Clause. Id. at 391, 395-96.

In Koontz v. St. Johns River Water Management

District, this Court rejected a Florida local

government’s attempt to avoid Nollan and Dolan by

requiring that the landowner agree either to shrink

the amount of his own land he sought to develop or pay

the locality for improvement of land the government

owned elsewhere. 570 U.S. 595, 601-02 (2013). The

Court held, among other things, that “‘monetary

exactions’ must satisfy the nexus and rough

proportionality requirements of Nollan and Dolan.”

Id. at 612.

This line of cases recognizes the critical principle

that government cannot use permitting leverage to

accomplish by induced “consent” an outcome that it

could not accomplish directly. In this case, Marin

County seeks to coerce the Benedettis into engaging in

commercial agriculture by burdening their property

rights. Such a permitting requirement is inconsistent

with this Court’s land use permitting case law and

with millennia of Western thought about the

fundamental right to property.

The Right to Property Extends Down to the

Foundation of Western Civilization.

Property rights have been essential to America’s

order, its “systematic and harmonious arrangement,” 9

and in the development of Western civilization. In his

classic The Roots of American Order, Russel Kirk

surveys “the legacy of order received from” key periods

of Western history, which Kirk distills into “four cities:

Jerusalem, Athens, Rome, and London.” 10

As John Adams understood, American order and

Western civilization largely derive their “essential

principle[s] of morality” from Jerusalem: “If I were an

atheist, and believed in blind eternal fate, I should

still believe that fate had ordained the Jews to be the

most essential instrument for civilizing the nations.” 11

From the very first chapter of the Pentateuch, the first

five books of the Hebrew Bible, the Creator bestows

9 Kirk, supra note 6, at 5.

10 Id. at 5.

11 Id. at 17.

authority and dominion on man. From his first days,

it has been man’s role to steward creation well.

The Ten Commandments were intended as

“liberating rules that enable a people to diminish the

tyranny of sin.” 12 These rules include an explicit

prohibition on theft. 13 The concepts of property,

ownership, and stewardship were fundamental to the

Hebraic law.

In Athens, the next city on Kirk’s tour of Western

thought, Aristotle considered stewardship and private

property essential to justice, the virtue he spent years

of his life trying to define. To Aristotle, people “will be

equals and partners in a community” when “people

still have their own things.” 14 Ownership of property

is necessary to exchange. Aristotle goes on to describe

justice as, in part, when parties distribute their goods

in such a proportion that both parties receive their

due. Thus, ownership incentivizes good stewardship

because bad stewards derive less benefit from their

property. Aristotle writes that social strife arises

when goods are distributed according to some measure

other than merit because “all agree that what is just

in distributions ought to accord with a certain merit.” 15

This is justice in action. Preventing any from receiving

12 Id. at 27.

13 “You shall not steal.” Exodus 20:15 (New American Standard

Bible).

14 Aristotle, Nicomachean Ethics 101 (Bartlett and Collins trans.,

University of Chicago Press, 2011).

15 Id. at 95.

what he is due would be an unfair and unjust

restriction. 16

The great Roman statesman Cicero built upon

Aristotle’s ideas. As an influential senator, Cicero

routinely and vigorously opposed agrarian laws that

would redistribute property. 17 Further, in his Topics,

Cicero held that of the two parts of natural law, the

first part was the right of each to his own

possessions. 18 Justice James Wilson would later

paraphrase and expand upon Cicero’s definition of a

republic, writing, while “at the beginning of…

American law, with no precedents accumulated under

the Constitution,” 19 that a state is “a complete body of

free persons united together for their common benefit,

to enjoy peaceably what is their own, and to do justice

to others.” Chisholm v. Georgia, 2 U.S. 419, 455 (1793)

(opinion of Wilson, J.) (emphasis added).

Finally, “London represents the culmination of

these

earlier

traditions,

refining

and

institutionalizing them into the English common law

and constitutional government that directly shaped

America’s own legal and political order.” 20 Through

16 The Benedetti

brothers are due the ability to use the land,

earned for them by their father, in a lawful way. Anything less

would be an injustice and would reduce them to twenty-first

century serfs on the land.

17 Neal Wood, The Economic Dimension of Cicero’s Political

Thought: Property and State, 16 Can. J. of Pol. Sci. 739, 743 (1983).

18 Id.

19 Hadley Arkes, A Natural Law Manifesto or an Appeal from the Old

Jurisprudence to the New, 1268 Notre Dame L. Rev. 87, 3 (2012).

20 Mike Pence, Ed Feulner, Rediscovering Order in an Age of

Populism,

National

Affairs

(2025)

available

London came John Locke, the Enlightenment thinker

who argued that property rights are a product of

natural law. In Locke’s famous Second Treatise on

Government, Locke wrote, “every man has a property

in his own person: this no body has any right to but

himself.” 21 Locke’s conception of property thus echoes

and builds upon Aristotle’s reasoning that justice

depends on giving to each his due. Specifically, Locke

says “the labour of [a man’s] body, and the work of [a

man’s] hands, we may say, are properly his.” 22 The

farmer has a claim on his crops in part because he has

given his time and care to the soil. For the flourishing

of society and to bring man into accord with the

natural law, man must have the ability to steward

private property.

While reflecting on the French Revolution in 1790,

Edmund Burke wrote that people “have a right to the

fruits of their industry; and to the means of making

their industry fruitful.” 23 Further, Burke observed,

“whatever each man can separately do without

trespassing on others he has a right to do for

himself.” 24 But Burke clearly distinguished between

equal opportunity and equal outcomes: “all men have

equal rights, but not to equal things.” 25 As with

https://www.nationalaffairs.com/publications/detail/rediscoveringorder-age-populism.

21 John Locke, The Two Treatises of Civil Government 107 (Liberty

Fund, Hollis ed. 2011) (1689) available on https://oll-resources.s3.useast-2.amazonaws.com/oll3/store/titles/222/Locke_0057_EBk_v6.0.pdf.

22 Id.

23 Edmund Burke, Reflections on the Revolution in France 88

(Regnery Co. 1955) (1790).

24 Id.

25 Id.

Aristotle, Burke understood that some will not

steward their property well and thus will enjoy fewer

benefits. The problem lies when government

interferes with the people’s ability to control their own

property.

America’s

founders

were

declaring

independence, Adam Smith published his seminal

work An Inquiry into the Nature and Causes of the

Wealth of Nations in 1776. Smith’s work permeated

America’s founding in Philadelphia not long after

being printed. Adam Smith’s explanation of markets

in The Wealth of Nations shaped the way America’s

Framers viewed property and government’s role, or

the limits of its role, in regulating property. 26

Smith’s “division of labor” is a practical application

of the notion of stewardship that was articulated by

Aristotle and his intellectual descendants. According

to Smith, though any given person could only make

twenty pins himself in one day, he can contribute to

the making of over forty-eight thousand pins in one

day when the pin-making process is divided and given

to several people. 27 When conditions allow people to

26 See, e.g., Samuel Fleischacker, Adam Smith’s Reception Among

the American Founders 59 William and Mary Quarterly 897, 906

(2002) (“In addition, in his National Gazette essays of the 1790s,

Madison's themes, which dealt with demography, fashion and

vanity, and the nature of property, reflected Smith's influence

and something of his style. The essay on property echoed Smith

in criticizing government measures that favored one type of

industry over another and in emphasizing the property in labor

over the property in the goods one might earn by laboring.”).

27 1 Adam Smith, An Inquiry into the Nature and Causes of the

Wealth of Nations, 15 (The Liberty Fund 1981) (1776).

coordinate and take ownership of their tasks, they

flourish and create “the universal opulence which

extends itself to the lowest ranks of the people.” 28

Smith, of course, could not have imagined the

“opulence” of American life today, 250 years later, the

product of such freedom of property and labor.

Considering themselves heirs of the same tradition

as Edmund Burke, the American Framers enshrined

in the Constitution the millennia-old view of property,

in Philadelphia 29, the fifth city in Kirk’s moral

geography. Defending the Constitution in The

Federalist Papers, “Publius” 30 (James Madison) wrote,

“Government is instituted no less for protection of the

property, than of the persons of individuals.” 31

Further, writing in the National Gazette in 1792,

James Madison said, “Government is instituted to

protect property of every sort . . . that alone is a just

28 Id. at 22.

Philadelphia, the city associated with the culmination of

Western thought for establishing justice, was the inspiration for

an enduring community. “[Frank] Meyer allied with libertarian

Milton Friedman and traditionalist Stanley Parry, to

propose . . . creating an organization that would go beyond

pragmatic politics to promote a deeper philosophical

understanding, which came to fruition in the creation of the

Philadelphia Society in 1964.” Donald J. Devine, Ronald

Reagan’s Enduring Principles: How They Can Promote Political

Success Today 146 (The Fund for American Studies 2023).

30 Brief of Advancing American Freedom et al., The Babylon Bee,

LLC v. Bonta, No. 25-6138 (9th Cir. Mar. 18, 2026) (discussing

the importance of pseudonymous and anonymous speech in the

Western tradition).

31 The Federalist No. 54, at 285 (James Madison) (George Carey

& James McClellan eds., The Liberty Fund 2001).

government, which impartially secures to every man,

whatever is his own.” 32 Madison, too, affirmed that in

order to be just, the government must provide the

people with the freedom to steward their property

well:

That is not a just government, nor is

property secure under it, where arbitrary

restrictions, exemptions, and monopolies

deny to part of its citizens that free use of

their faculties, and free choice of their

occupations, which not only constitute

their property in the general sense of the

word; but are the means of acquiring

property strictly so called. 33

government

that

“indirectly

violates

[individuals’] property, in their actual possessions, in

the labor that acquires their daily subsistence, and in

the hallowed remnant of time which ought to relieve

their fatigues and soothe their cares . . . is not a

pattern for the United States.” 34

Nor did the Framers of the Constitution or those

who ratified it, and later those who framed and

ratified the Fourteenth Amendment, intend to create

such a government.

32 1 The Founders’ Constitution at 598 (The Liberty Fund 1987).

33 Id.

34 Id. at 599.

II. The Right to Property is Essential to

American Liberty.

The codification of the private right to property

extends back centuries in the Anglo-American

tradition, not least to the Coronation Charter of

Henry I 35 and Magna Carta. 36 See Tyler v. Hennepin

Cnty., 598 U.S. 631, 639 (2023).

“Traditional legal thinkers in both the Roman law

and common law tradition constantly insisted on this

key proposition: ‘property is the guardian of every

other right.’” 37 In fact, the word “right” itself originally

“referred only to a valid title of ownership, such as the

title to real estate.” 38

The centrality of property to ordered liberty was

understood by “the key writers who set the intellectual

framework of our Constitution—John Locke, David

Hume, William Blackstone, Adam Smith, and James

Madison” all of whom “treated private property as a

bulwark of the individual against the arbitrary power

of the state.” 39

Blackstone said of the right to property:

35 Paul Larkin, The Original Understanding of “Property” in the

Constitution, 100 Marq. L. Rev. 1, 17 (2016).

36 See generally W. McKechnie, Magna Carta, A Commentary on

the Great Charter of King John, 321-26 (rev. 2d ed. 1914).

37 Richard A. Epstein, Supreme Neglect: How to Revive

Constitutional Protection for Private Property 1 (Oxford Univ. Press

2008).

38 Larkin, supra note 35, at 18.

39 Epstein, supra note 37, at 6.

There is nothing which so generally

strikes the imagination, and engages the

affections of mankind, as the right of

property; or that sole and despotic

dominion which one man claims and

exercises over the external things of the

world, in total exclusion of the right of

any other individual in the universe. 40

For, “John Locke, whose work greatly influenced

early Americans . . . men created civil society to

protect ‘property’ along with the closely related

concepts of life and liberty.” 41

The Founders clearly thought the right to property

was essential to the garden of ordered liberty they

were cultivating. According to Hamilton, “the security

of Property” was “one of the ‘great obj[ects] of

Gov[ernment].’” Kelo, 545 U.S. at 496 (O’Connor, J.,

dissenting).

James Madison described property broadly to

include even one’s opinions and beliefs. 42 He argued

that property as well as personal rights are an

“essential object of the laws” necessary to the

promotion of free government. Alexander Hamilton

40 Richard A. Epstein, Takings 22 (Harvard University Press 1985).

41 Id.

The Anti-Federalists, too, though early opponents of the

Constitution, had a high regard for one’s opinions and liberty of

the press: “It is the opinion of some great writers… that if the

liberty of the press… could be rendered sacred…that despotism

would fly before it.” Herbert J. Storing, What the Anti-Federalists

Were For: The Political Thought of the Opponents of the

Constitution 64 (Chicago Univ. Press 1981).

stated that the preservation of private property was

essential to liberty and republican government.

Thomas Jefferson depicted property as a “natural

right” of mankind and linked ownership to public

virtue and republican government. 43 John Adams

described a proper balance of property in society as

important to maintaining republican government and

connected property ownership to moral worth.

Thomas Paine held that the state was instituted to

protect the natural right of property, and Daniel

Webster would later link property to virtue, freedom,

and power. Numerous Anti-Federalists described a

society as free when it protected property rights or

equalized property distributions. 44

The right to property was not just another right. It

was central to their understanding of liberty and to

the role government plays in securing it.

America’s Founders fought the Revolution “to

preserve the rule of law and the freedoms enjoyed by

the Framers’ generation as Englishmen,” one of which

“[I]f a nation expects to be ignorant & free, in a state of

civilisation, it expects what never was & never will be. the

functionaries of every government have propensities to command

at will the liberty & property of their constituents. there is no

safe deposit for these but with the people themselves; nor can

they be safe with them without information. where the press is

free and every man able to read, all is safe.” Letter from Thomas

Jefferson to Charles Yancey, in George H. Nash and Timothy G.

Nash, Books and the Founding Fathers: And Their Influence on

America Today 69 (Northwood Univ. Press 2026).

44 David Schultz, Political Theory and Legal History: Conflicting

Depictions of Property in the American Political Founding, 37

Am. J. Legal Hist. 464, 475-77 (1993).

“was the ability to acquire and enjoy the use of private

property.” 45 George Mason, in the Virginia

Declaration of Rights, wrote that “all men are born

equally free and independent, and have certain

inherent natural rights . . . among which are, the

enjoyment of life and liberty, with the means of

acquiring

and

possessing

property.” 46

This

formulation became “canonical,” being “replicated in

four state constitutions.” 47

“Most Colonists owned property,” and early

Americans “saw ‘life, liberty, and property’ as ‘the

fundamental trinity of inalienable rights,’ rights that

‘individuals could never renounce.’” 48 Accordingly,

James Madison argued that a government is not just

if “the property which a man has in his personal safety

and personal liberty, is violated by arbitrary seizures

of one class of [persons] for the service of the rest.” 49

Madison, further:

[C]riticized a government that used

“arbitrary restrictions, exemptions, and

monopolies” to “deny to part of its citizens

that free use of their faculties, and free

choice of their occupations, which not only

constitute their property in the general

45 Larkin, supra note 35, at 17.

46 The Virginia Declaration of Rights § 1.

47 Randy E. Barnett, Three Keys to the Original Meaning of the

Privileges or Immunities Clause 43 Harv. J. of Law and Pub. Pol’y

1, 3 (2020).

48 Larkin, supra note 35, at 31 (quoting Jack N. Rakove, Original

Meanings: Politics and Ideas in the Making of the Constitution

290 (1996)).

49 Id. at 34 (internal quotation marks omitted).

sense of the word; but are the means of

acquiring property strictly so called.” 50

The right to property was brought to bear against

slavery in the antebellum period. Abolitionist Senator

Charles Sumner, for example, argued that slavery was

“a local municipal institution which derives its

support exclusively from local municipal laws” and

that slaves were “persons,” not property. 51 Thus, the

alleged property right of the slaveholder was distinct

from “that property which is admitted to be such by

the universal law of nature, written by God’s own

finger on the heart of man.” 52

The right to property was also a core tenet of

Reconstruction era efforts to protect the rights of freed

former slaves. The Civil Rights Act of 1866 was passed

by Congress as an exercise of its enforcement power

under the Thirteenth Amendment and sought to

ensure that all citizens enjoyed equal rights under state

law, among other things, “to inherit, purchase, lease,

sell, hold, and convey real and personal property.” 53

Concerned both that the Act would be repealed

once southern Democrats returned to office and that it

might be scrutinized in court on constitutional

grounds, “many in Congress supported a parallel

50 Id.

51 Senator Charles Sumner, The Landmark of freedom. Speech

of Hon. Charles Sumner, against the repeal of the Missouri

prohibition of slavery north of 36° 30#. In the Senate, February

21,

1854

available

https://tile.loc.gov/storageservices/service/rbc/rbaapc/28500/28500.pdf.

52 Id.

53 Barnett, supra note 47 at 4.

effort to adopt a constitutional amendment to make

the freedmen United States citizens and to protect the

fundamental rights of all United States citizens from

being abridged by state governments.” 54 Which rights?

“At least the rights listed in the Civil Rights Act,

including the rights ‘to make and enforce contracts,

. . . to inherit, purchase, lease, sell, hold, and convey

real and personal property.’” 55

For those drafting and adopting the Reconstruction

Amendments, the ability of freed slaves to exercise

their liberty, including the right to own property, was

essential. These Republicans believed that “every

person own[s] him or herself,” and has “the inherent

right to enter into contacts by which they c[an] acquire

property in return.” 56

When Senator Jacob Howard defended the

Fourteenth Amendment on the Senate floor, he sought

to explicate the scope of “privileges and immunities”

by, in part, quoting from Justice Bushrod

Washington’s opinion in Corfield v. Coryell, 6 F. Cas.

546, 551-52 (C.C.E.D. Pa. 1823) (No. 3,230), itself a

restatement of Mason’s canonical enumeration. 57

Senator Howard said that “the enjoyment of life and

liberty, with the right to acquire and possess property

of every kind, and to pursue and obtain happiness and

54 Id. at 5-6.

55 Id. at 6.

56 Randy E. Barnett, Does the Original Meaning of the Fourteenth

Amendment Protect Economic Liberty? 94 Miss. L. J. 1225, 1226

(2025).

57 Barnett, supra note 47 at 3, 6-7. Associate Justice Washington

inherited Mt. Vernon from his uncle, George Washington.

safety; subject nevertheless to such restraints as the

government may justly prescribe for the general good

of the whole.” 58

Responding to a hypothetical objection, Senator

Howard distinguished between these rights, including

the right to property, and suffrage. He notes that

“[t]he right of suffrage is not, in law, one of the

privileges and immunities thus secured by the

Constitution,” because “[i]t is merely a creature of

law.” 59 That is distinct from the privileges and

immunities of citizenship which, rather than arising

from “local positive law,” are “fundamental rights

lying at the basis of all society and without which a

people cannot exist except as slaves, subject to a

despotism.” 60 In short, without adequate protection

for the “fundamental right” “to acquire and possess

property,” the people are slaves.

This Court has repeatedly recognized the centrality

of one’s hearth and home, a source of comfort and safety

for one’s family, to American liberty. In the context of

the Fourth Amendment, the Court recognizes “the

constitutional interest at stake: the sanctity of a

person’s living space.” Lange v. California, 594 U.S.

295, 303 (2021). Constitutionally, the “home is the first

among equals,” and the Fourth Amendment’s “very

core” is “the right of a man to retreat to his own home

and there be free from unreasonable government

intrusion.” Id. (internal quotation marks omitted)

(quoting Florida v. Jardines, 569 U.S. 1, 6 (2013);

58 CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement

of Sen. Howard).

59 Id. at 2766.

60 Id.

Collins v. Virginia, 584 U.S. 586, 592 (2018)). It is a

“‘centuries-old principle’ that the ‘home is entitled to

special protection.’” Id. (quoting Georgia v. Randolph,

547 U.S. 103, 109, 115 (2006)).

The right to property extends back to the dawn of

Western civilization and was understood by the

founding generation to be central to liberty. This case

presents the Court with a question of critical

importance that it has answered in related situations

before: can the government use its regulatory power to

condition the use of property to accomplish an

otherwise illegal end? The Court has repeatedly

answered in the negative and yet states and localities

continue to seek to enact their preferred policy

through indirect means. The Court should grant the

petition for certiorari and affirm the Constitution’s

protection for every American’s right to property.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari.

Respectfully submitted,