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Routledge Handbook of Constitutional Law by Cheryl Saunders, Thomas Fleiner, Mark Tushnet

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28Proprietary constitutionalism

Jeremy Webber and Kirsty Gover*

28.1 Introduction

Most textbooks treat constitutional provisions with respect to property as though they conformed to a simple story: property rights arise outside the constitution; the state may seek to infringe those rights; constitutional protections limit the extent to which the state can do so.

That story is, however, too simple. To begin with, it assumes that all constitutional provisions with respect to property are designed to protect privately owned assets. A review of constitutions worldwide makes clear this is not the case.1 The protection of private property is certainly a principal aim of constitutions in the liberal tradition—although, as we will see, there are variations ...

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