75 Am. U. L. Rev. 209 (2025).

Abstract

Can government prohibit the acquisition of all types of property? The intuitive answer to this question is “no.” But why? Is there a constitutional right to acquire property? And, if so, how does it apply if government merely prohibits acquisition of a certain type of property, such as contraceptives?

The Fourth, Fifth, and Fourteenth Amendments restrict when property may be “taken” or “seized” and when a person may be “deprived” of property. Thousands of law review articles and hundreds of books have analyzed the scope of these provisions. But almost no modern attention has been devoted to their logical counterpart—the right to acquire property. Although this right is firmly embedded in our nation’s history, it has been ignored for over a century.

This Article is the first comprehensive analysis of the right to acquire property. Given the Supreme Court’s renewed focus on protecting property, the time has come to revive this traditional right. The Article explores different constitutional provisions that could serve as the basis for the right. It then argues that prohibitions on the acquisition of “family property” should be evaluated under a heightened standard of review. Finally, it applies this standard to three modern controversies—bans on the acquisition of contraceptives, apartments, and cars.

* Professor of Law, University of the Pacific, McGeorge School of Law. I thank Ederlina Co, Gail Heckemeyer, Brian Landsberg, and John Sims for their thoughtful comments on a prior draft of this Article.