[Footnote 1:  Justice Brewer, in the Yale Law Review, for June, 1891.  He holds that under “the pursuit of happiness” comes the acquisition, possession, and enjoyment of property, and that they are matters which even government cannot forbid nor destroy.  That, except in punishment for crime, no man’s property can be taken without just compensation, and he closes:  “Instead of saying that all private property is held at the mercy of the public, it is a higher truth that all rights of the state in the property of the individual are at the expense of the people.”]

When we come to legislation on the subject, or to modern State constitutions, there is hardly a change in this particular.  Naturally, we find no new legislation confirming the right of property abstractly, or restating that that institution is part of our civilization.  There is but one significant exception to this statement.  While most of the States in their constitutions declare that men have a natural right to acquire, possess, and protect property, and Kentucky and Arkansas go to the length of saying that the right of property is “before and higher than any constitutional sanction”—­which latter statement is a legal hyperbole—­Oklahoma in its recent constitution, North Carolina, and Missouri state only that men have a natural right to the enjoyment of the fruits of their own labor; on the other hand there are recent intimations coming from Federal sources that individualism or private property rights, at least, and not anarchism or socialism, are part of our constitutional system.  Before 1907 a Texas district judge refused to naturalize an immigrant on the ground that he was a socialist and that socialism was inconsistent with the Federal Constitution; and in that year Congress passed an act to regulate all immigration of aliens, which excludes, among other classes, persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government, or of all forms of law—­a definition which would exclude anarchists, but not socialists; and in the case of South Carolina v.  United States (199 U.S. 437), the Supreme Court of the United States gave serious consideration to the question whether State socialism was compatible with a republican form of government.  This is all, so far as I am aware, that a century and a half of legislation has given us affirming the abstract right of property, though there are several constructive statutes and constitutional provisions applied to the general right to trade or labor, which we shall consider when we come to that subject.

When a right is expressly guaranteed by the Constitution, we need ordinarily have no affirmative legislation about it.  Liberty and property being always guaranteed by the State constitutions, it has not been necessary for the States to legislate to protect them.