Property and Government Under the Constitution
on Liberty - January 1995 - Posted on February 13, 2002
by Gary M. Pecquet
The economic concept of private
property refers to the rights owners have to the exclusive use and
disposal of a physical object. Property is not a table, a chair, or an
acre of land. It is the bundle of rights which the owner is entitled to
employ those objects. The alternative (collectivist) view is that private
property consists merely of a legal deed to an object with the use and
disposal of the object subject to the whims and mercies of the state.
Under this latter view, the state retains ownership and may at any time
regulate or even repossess the property it temporarily cedes to
The Founding Fathers upheld the economic view of property. They believed
that private property ownership, as defined under common law, pre-existed
government. The state and federal governments were the mere contractual
agents of the people, not sovereign lords over them. All rights, not
specifically delegated to the government, remained with the
people--including the common-law provisions of private property.
Consequently, the constitutional rights regarding free speech, freedom of
religion, the right of assembly, and private property rights are all
claims that individuals may hold and exercise against the government
itself. In brief, private property refers to the rights of owners to use
their possessions which are enforceable against all nonowners--even the
The Economic Concept of Ownership
"We may speak of a person owning land and using it as a factor of
production," writes Nobel laureate Ronald Coase in his essay on
"The Problem of Social Cost," "but what the owner in fact
possesses is the right to perform certain (physical) actions." These
"rights to perform physical actions," called private property,
constitute the real factors of production and the real articles of trade.
Legal title itself means nothing. At best, a title or deed amounts to
proof of ownership, not the rights inherent in ownership.
Many people confuse the economic concept of ownership with the mere
holding of legal title. Often, title and ownership coincide, but not
necessarily. Sometimes businesses lease equipment from manufacturers under
circumstances which transfer all of the meaningful rights of ownership to
the lessee while title remains with the manufacturer. Here are two
examples: if a lease approximates the useful life of the equipment or if
the lease itself contains an option to buy the equipment outright for a
nominal sum. In both cases the lease transfers ownership in the true
economic meaning of rights to employ the equipment without actually
changing title. Proper accounting principles, in such cases, require the
lessee to record the equipment on its books as an asset and the lease
itself becomes a method of financing the purchase. The manufacturer
although still retaining title to the equipment no longer "owns"
the property and, accordingly, should not include it as an asset.
In other cases, the "bundle of rights" to use an object may be
separated and sold apart from the title. Once again, here are two
examples: landowners may lease property for a specified period of time
while retaining the residual rights to the land upon termination of the
contract or the same landowner may sell only the mineral rights, while
retaining title along with most of the "sticks" in the property
rights bundle. The validity of these contracts implies that ownership
refers to the many legitimate uses and disposal of things, rather than
title to the object itself.
The economic view of property consisting of primarily actions, rather than
things, is also compatible with intellectual property, such as copyrights
and patents. The right to publish a book or construct a machine may be
reserved to the author/inventor. These species of private property do not
refer to any specific objects at all, but are legitimate articles of
The Common Law Boundaries of Private Property
The British common law has established the legal limits to property rights
through case precedents, reflecting the practical needs of trade long
before the North American colonies even existed. The common law provided a
clear picture of ownership to the Founding Fathers.
The common law has three pillars: private property, tort liability, and
the law of contract. Property and tort liability are inexorably
intertwined. No one has a right to infringe upon the legitimate rights of
If one uses his possessions to create a health hazard or nuisance to
others, he is fully liable for damages. In some instances, an injunction
may even prevent an unlawful action before it causes damages to others.
The very boundaries of private property are defined by common law
liabilities. For example, if Mr. A erects a six-foot fence at the border
of his land and this fence blocks the sunlight to Ms. B's garden, does Ms.
B have a common law right to access the sunlight? If so, she would have a
claim under tort law. If not, Mr. A may construct the fence and Ms. B
either relocates her garden or persuades or compensates Mr. A to move his
fence away from the established boundary. The point is that a reasonable
and efficient result should occur under either rule. What is important is
for the liability limits to property be well-established and clearly
defined. After many case precedents the common law courts begin to sharply
define the boundaries of private property. Owners may then negotiate,
mutually reaching an arrangement, without going to battle in court over a
legal ambiguity or seeking a new statute.
The "bundle of rights" we call private property comprise the
subject matter for all contracts. Every time goods exchange hands, land is
purchased, and an employment contract is signed, "bundles of
rights" to resources are exchanged. All commerce, and the prosperity
which it generates, depend upon the security and certainty of property
rights. If an urban area has a notorious high crime rate, local businesses
will tend either to relocate or increase prices. If the courts do not
establish consistent liability rules, then litigation costs increase and
the basis for agreements is undercut. If the legislature threatens to
regulate business, then potential competitors may be frightened away. If
the potential uses to which property may be employed are subject to
regulation by a governmental body, then the value of property declines.
Men like James Madison and Alexander Hamilton understood that prosperity
depends upon the security and certainty of property rights and designed
the Constitution accordingly.
The common law does evolve slowly to reflect changes in both technology
and social mores, but it provides a stable set of rules of conduct.
Moreover the common people on juries decide common law cases, not kings,
not legislatures. This establishes an important rule-making authority
outside of any centralized government.
The English Whigs on Property and Government
Our American forefathers did not develop their political theories in an
intellectual vacuum. More than a century before the American Revolution, a
Civil War raged in Britain. It pitted the Monarchy against Parliament.
Among the opponents of the Monarchy were the seventeenth-century English
Whigs. Over the course of a few decades, English Whig intellectuals
expounded their theories about property and government. These thinkers,
including John Locke, Algernon Sidney, and Thomas Gordon, taught America's
founders much about property and government.1
Prior to the rise of the English Whigs, the "divine right of
kings" had held that all rights, liberties, and properties actually
belonged to the king. The king merely permitted his subjects to use their
possessions. The king, however, might regulate the use or even seize these
possessions outright at his whim. The people had no claims or rights which
could be exercised against the sovereign. Their possessions were at the
mercy of the government.
By contrast, the English Whigs believed that the fountainhead for all
rights was the sanctity of the individual, not the divinity of the state.
John Locke contended that human rights were "natural rights"
which pre-existed government. The original owners of the land were the
real sovereigns, not the king. Remember the old English saying, "A
man's house is his castle and every man is king." Owners, however,
might consent to give up a small part of their liberty and property to
government in order to institute criminal law and national defense and to
perform certain other specifically delegated tasks. Legitimate government
is formed by contract and may never acquire more rights than delegated by
the property owners who institute it. The authorities must never exceed
their narrow constitutionally delegated authority--lest they become
According to the Whig view, legitimate government is an agent, a servant,
a mere convenience charged with certain specific tasks. Moreover, even
elected governments tend to become despotic as the British Parliamentary
experience illustrated. Most of the descriptions of political power during
colonial times were negative. Thomas Gordon discussed the issues of the
day in Cato's Letters. Power was often shown as a "clutching grasping
hand" or described as a "cancer that eats away at the body
It is also relevant that the Whigs expressed all rights in terms of
property. Each man owned his own person and labor. Slaveholders were
condemned as man-stealers, the lowest sort of thief who stole the whole
person, not merely part of his labor. Whenever the Whigs argued for
freedom of religion, the teachers of our forefathers referred to
"property in one's conscience." When they opposed Sabbatarian
laws, prohibiting certain activities on Sunday, they referred to
"property in one's time." The Whig view equated property and
liberty, once again reflecting the economic concept that property refers
primarily to freedoms to act.
The Founders and Framers on Property and
The best way to examine the importance of private property to our
forefathers and its place under the law is to study the words of the
founders and framers themselves: men like Thomas Jefferson, James Madison,
and Alexander Hamilton. In the passage below Jefferson argues that the
colonial landholdings had always been held free and clear of the British
crown. Throughout American colonial experience, the British crown exacted
a small fee called a quit-rent upon all landholders. The quit-rent often
went uncollected and never raised much revenue, but it remained on the
books as a legal assertion that all land titles were held subject to the
crown. In 1774, Jefferson disputed this kingly claim. Jefferson's
reasoning gave historical teeth to the Whig view that sovereignty belongs
to individuals and that property pre-exists government. Therefore the
United States government formed two years later would be established by
free men, not serfs. Neither could the new government claim to be the
recipient of any superior monarchial rights or claims to private
landholdings. According to Jefferson:
That we shall at this time also take notice of an error in the nature of
our landholdings, which crept in at a very early period of our
settlement. The introduction of the feudal tenures into the kingdom of
England, though ancient, is well enough understood to set this matter in
its proper light. In the earlier ages of the Saxon settlement feudal
holdings were certainly altogether unknown, and very few, if any, had
been introduced at the time of the Norman conquest. Our Saxon ancestors
held their lands, as they did their personal property, in absolute
dominion, disencumbered with any superior. . . . William the Conqueror
first introduced that system [feudalism] generally. The lands which had
belonged to those who fell at the battle of Hastings, and in the
subsequent insurrections of his reign, formed a considerable proportion
of the lands of the whole kingdom. These he granted out, subject to
feudal duties, as did he also those of a great number of his new
subjects, who by persuasions or threats were induced to surrender then
for that purpose. But still much of the land was left in the hands of
his Saxon subjects, held of no superior, and not subject to feudal
conditions. . . . A general principle indeed was introduced that
"all lands in England were held either mediately or immediately of
the crown": but thus was borrowed from those holdings which were
truly feudal, and applied to others for the purposes of illustration.
Feudal holdings were therefore but exceptions out of the Saxon laws of
possession, under which all lands were held in absolute right. These
therefore still form the basis of the common law, to prevail whenever
the exceptions have not taken place. America was not conquered by
William the Norman, nor its lands surrendered to him or any of his
successors. Possessions are undoubtedly of the [absolute disencumbered]
nature. Our ancestors however, were laborers, not lawyers. The
fictitious principle that all lands belong originally to the king, that
they were early persuaded to believe real, and accrdingly took grants of
their own lands from the crown. And while the crown continued to grant
for small sums and on reasonable rents, there was no inducement to
arrest the error.2
In The Federalist Papers, James Madison and others argued that the
proposed U.S. Constitution would protect the liberty and property of the
citizens from usurpations of power from the federal government.
Power in the new government was to be divided into three branches:
legislative, executive, and judicial. This would create a system of checks
and balances necessary to hinder the unwarranted expansion of political
power. The division of power would also make it more difficult for a
majority to oppress a political minority and political stability would
more likely result. In the following passage James Madison discusses the
problems of "mutable policy" (governmental activism). Madison
believed that the new Constitution would establish a consistent, stable
set of laws necessary to promote prosperity. Otherwise, he warned:
The internal effects of a mutable policy are still more calamitous. It
poisons the blessings of liberty itself. It will be of little avail to
the people that the laws are made by men of their choice if the laws be
so voluminous that they cannot be read, or so incoherent that they
cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man, who knows
what the law is today, can guess what it will be tomorrow. Law is
defined to be a rule of action; but how can that be a rule, which is
little known, and less fixed?
Another effect of public instability is the unreasonable advantage it
gives to the sagacious, the enterprising, and the monied few over the
industrious and uninformed mass of the people. Every new regulation
concerning commerce or revenue, or in any manner affecting the value of
the different species of property, presents a new harvest to those who
watch the change, and can trace its consequences; a harvest, reared not by
themselves, but by the toils and cares of the great body of their fellow
citizens. This is a state of things in which it may be said with some
truth that the laws are made for the few, not the many.
In another point of view, great injury results from an unstable
government. The want of confidence in the public councils damps every
useful undertaking, the success and profit of which may depend upon a
continuance of existing arrangements. What prudent merchant will hazard
his fortunes in any new branch of commerce when he knows not but that his
plans will be rendered unlawful before they can be executed? What farmer
or manufacturer will lay himself out for the encouragement given to any
particular cultivation or establishment, when he can have no assurance
that his preparatory labors and advances will not render him a victim of
inconsistent government? In a word, no great improvement or laudable
enterprise can go forward which requires the auspices of a steady stream
of national policy.3
Alexander Hamilton contended that the new federal Constitution would
protect private property and liberty from abuses arising at the state
level. Between the end of the Revolutionary War in 1781 and the
ratification of the Constitution in 1788 state governments faced debtor
uprisings, such as Shays' Rebellion.
State legislatures sometimes granted debt relief or "stays" on
the payments of debts. Hamilton believed the proposed Constitution had
"precautions against the repetition of those practices on the part of
the State governments which have undermined the foundations of property
and credit."4 He referred to Article I section 10 of the Constitution
which explicitly protects creditors by forbidding states to pass laws
"impairing the obligation of contract" or even devaluing debt
obligations by making "any thing but gold and silver a tender in
payment of debts."
The "impairment of contract" clause remains effective today. New
state laws affecting long-standing agreements may only alter future
contracts, not existing ones. This protects interstate commerce, such as
insurance and banking, from potential abuses by state and local
politicians who may be tempted to rewrite contracts to redistribute income
from outsiders to local constituents.
In the body of the Constitution, Article I sections 9 and 10, also
expressly forbids both federal and state governments to grant titles of
nobility. This prohibits the establishment of a formal, hereditary class
in the United States. In England, the titles "Prince,"
"Duke," and "Earl" consisted of much more than a
prefix to a name. Nobility also laid feudal claim to the land held by the
common people. Feudal titles, such as Prince of Wales and Duke of York,
pretend ownership to the entire realm, subordinating the rights of the
landholdings of commoners. America's framers hated the European class
system and the feudal pretense to the land that it represented. The United
States are forbidden to ever establish feudal land tenures to lands
because sovereign landholdings are essential to a free "Republican
form of government."
The U.S. Constitution contained a number of flaws, most notably, the
official sanctioning of slavery. Nor did the Constitutional framers
advocate laissez-faire capitalism. Some of the framers, including
Alexander Hamilton, believed that the government should actively encourage
economic growth through protective tariffs. Nonetheless, the framers all
held private property in high esteem. Indeed, commercial prosperity seems
to be the chief end of good government to them. The economic system under
the Constitution is capitalism with a very few specific exceptions
explicitly delegating limited powers to Congress, i.e., coin money,
establish a Post Office, lay customs duties, etc. James Madison
summarized, "The powers delegated to the federal government are few
The Bill of Rights on Private Property
Many people were fearful that the Constitution still concentrated too much
power in the hands of the federal government. The electorate in key states
insisted upon a "Bill of Rights" lest they would reject the
These amendments soon became incorporated into the new Constitution. Six
of these ten amendments pertain either directly or indirectly to private
The Third Amendment states, "No soldier shall in times of peace be
quartered in any house, without consent of the owner, nor in times of war,
but in a manner prescribed by law." This amendment grew out of abuses
by the British, who had forced people to allow troops into their homes.
The amendment clearly protects the rights of homeowners, but is too
specific for wider applications.
The Fourth Amendment includes the clause, "The rights of people to be
secure in their persons, houses, and effects against unreasonable searches
and seizures shall not be violated and no warrants shall issue, but upon
probable cause . . ." The "search and seizure" clause has
been interpreted to pertain primarily to criminal cases, but the stated
intent of this statement is to make people secure in their persons and
possessions. In civil cases law enforcement officials presently are able
to seize property without a warrant and place the burden of proof upon the
owner to show that he did not commit a crime. In fact, some local
governments now use civil seizures to supplement their budgets.
The Seventh Amendment requires that for civil cases in federal courts,
"no fact tried by a jury, shall be otherwise re-examined in any court
of the United States than according to common law." The common law,
as we have seen, rests upon three pillars, including private property
rights. This indirect recognition of private property only protects
individual owners against other private parties. These common law property
claims become enforceable against the federal government under the Ninth
and Tenth Amendments.
Amendment Nine states, "The enumeration of certain rights, shall not
be construed to deny or disparage others retained by the people."
Amendment Ten further stipulates, "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the states are
reserved to the states and the people." The original intent of the
"enumeration" and the "reservation" clauses clearly
reaffirm the contract theory of government held by John Locke and James
Madison alike. All "powers not delegated to the federal
government" includes any and all private property rights described
under the common law. Historically, however, U.S. courts have never used
the "reservation" clause to decide important cases.
The most explicit recognition of private property comes in the Fifth
Amendment which states "Nor shall [anyone] be deprived of life,
liberty, or property without due process of law; Nor shall private
property be taken for public use without just compensation." The
first clause is called the "due process" clause while the second
part is referred to as the "takings" clause.
Until the middle of the twentieth century, the "due process"
clause was often used to strike down regulations imposed on private
property especially if they amounted to confiscation by regulation or if
they exceeded the federal government's constitutionally delegated
authority. For example, when President Franklin Roosevelt's National
Recovery Act required all trades and businesses to form trade
associations, restrict entry, and establish minimum wages and prices, the
Supreme Court overturned this wholesale reorganization of U.S. industry as
a violation of the "due process" clause. This prompted President
Roosevelt to threaten to "pack" the Supreme Court. Although
Roosevelt failed to gain congressional approval to expand the Supreme
Court from nine to fifteen members, the Court no longer overturned New
Deal policies. Subsequently, Courts have created an artificial distinction
between "property liberties" and "personal liberties."
Rarely, do Courts use the "due process" clause to uphold
"property liberties" anymore. Current judicial theorists argue
that the Constitution does not prescribe a particular economic system
(capitalism). Therefore, private property liberties are not protected
while "personal liberties" such as First Amendment guarantees of
free speech are still upheld under the "due process" clause.
The "takings" clause requires all levels of government to justly
compensate owners for property taken for public use. Whenever land is
condemned or taken for highway construction, military bases, and so forth,
courts must estimate the fair value of the property to be paid to the
owners. The "takings" clause also requires governments to
compensate owners when confiscatory taxes are imposed or regulatory acts
render property worthless.
The "takings" clause was intended to prevent the government from
forcing a few property owners to bear the burdens of legislative measures
intended to benefit the general public. It reduces the uncertainties of
property ownership arising out of the political system, helping to
mitigate the problems of "mutable" policy alluded to by Madison.
Requiring government to compensate owners for the resources that it takes
for public use also enhances proper cost-benefit planning on the part of
policymakers; but the primary purpose of this clause is to protect
property owners from arbitrary governmental power, not to assist
bureaucratic planners--or else the framers would have added a "givings"
clause entitling the State to be compensated for the public benefits it
claims to generate.
Until the twentieth century, U.S. courts never applied the
"takings" clause to regulations falling short of transferring
legal title to the government. Courts, however, did respect private
property. Owners could find relief under the "due process"
clause which could overturn state and federal legislation altogether.
Indeed, the failure to apply the "due process" clause in
property cases places the "takings" clause as the final barrier
to full governmental supremacy over private property rights.
At present, courts are evolving their opinions regarding the
"takings" clause. They are willing to allow the regulation of
property to some extent, but if the regulation goes too far it may become
a taking. The current legal uncertainty results from the clashing views on
the nature of private property. Does property constitute the rights of
individual owners to actions which enjoy constitutional protections
against arbitrary government actions or is the government supreme? In our
forefathers' day, the latter view was known as "the divine right of
kings." During the middle of the twentieth century, the economic
system which allows ownership on paper while the government made all of
the important decisions regarding the uses of property was called fascism.
Today, in the United States government supremacy over individual property
owners means that the government may temporarily permit us to hold title
to certain of its possessions and use them in limited ways at its
pleasure. So far, the opponents of constitutional property rights have
refused to give their system a new name, but it amounts to the same old
system called tyranny.
The essence of private property is the bundle of actions which owners may
rightfully perform. Logically, any legislation restricting these ownership
acts amounts to a regulatory "taking" and the owner ought to be
entitled to be compensated for the decline in value of his assets. The
Constitution did not establish unlimited majority rule. Even the
legislature must be subject to the rule of law.
Nevertheless, many regulations would not involve compensation under the
Fifth Amendment because they either do not involve a regulatory
"taking" or measurably reduce the fair market value of property.
For example, if landowners have a right to be free of pollution under the
common law of nuisance and the owners are too disorganized to protect
their rights against polluters, a governmental statute may empower the
executive to bring the polluters to court under the common law and even
impose special statutory penalties upon them. Since the right to pollute
did not exist, no "taking" is involved and the government is
merely performing its legitimate role in defense of private property.
Other regulations, such as Civil Rights public accommodations cases, the
regulatory requirement to serve all patrons would not adversely affect the
value of the property. Zoning laws often increase land values. No
compensation would be required unless the value of the "takings"
is measurably reduced.
Under any interpretation, the "takings" clause is a
comparatively weak protection of private property. The government may
still impose taxes and acquire resources for public use. Courts must still
determine "fair" value by making very imprecise approximations.
Finally, some government regulations inhibit trade while actually
augmenting the value of certain properties. For example, a zoning
ordinance which severely restricts the land available for commercial use
might increase the value of the property already employed in trade.
Although such laws stifle growth and commercial liberty, the
"takings" clause offers no relief to prospective businessmen who
are unable to enter the market. The broad interpretation of the
"takings" clause is no substitute for the judicial protection of
"property liberties" under the "due process" clause.
Following the Civil War, the Thirteenth Amendment ended slavery and the
Fourteenth Amendment extended the application of the "Bill of
Rights." Section 1 of the Fourteenth Amendment reads, "All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
deny any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
The application of the "due process" clause to the states gives
to individuals and businesses the same Fifth Amendment grounds to
challenge state regulations as they already possessed against federal law.
The "equal protection" clause extends the basic rights of
citizenship to all Americans, regardless of race and sex.
Both clauses were specifically intended to protect the property and
liberty of blacks from outrageous actions on the part of southern states.
It obviously outlaws the old southern "separate but equal"
segregation laws. Thanks to the Fourteenth Amendment, all citizens are
joint heirs to the old Saxon and English Whig concepts of liberty and
Where Have All Our Property Rights Gone?
The constitutional history discussed above clearly shows that the founders
did take private property seriously and designed the Constitution
accordingly. In order to limit the potential for tyranny the framers:
(1) Divided the powers into three separate branches (legislative,
executive and judicial).
The constitutional protections of our liberties have withered over the
years. The division of powers within the federal government may have
checked the expansion of one part of the federal government into the
domain of another, but there is no protection for the people and states
against collusions and the conspiracies among the different branches to
exceed the delegated powers of federal authority. For example, the
Constitution does not grant the federal government jurisdiction over
education, housing, agriculture, or energy, but these functions have been
elevated to cabinet level status in Washington by Congress, administered
by the executive branch and approved by the courts.
(2) Further separated the functions of government between federal and
state levels, giving the federal level only a few enumerated powers.
(3) Incorporated a "Bill of Rights" which specifically listed
some of the most important applications of individual rights for all
people to read and the courts to uphold.
Federal regulations have become so extensive that Congress often delegates
its rule-making powers to numerous, non-elected agencies, such as the FTC,
FDA, OSHA, SEC, and EPA. These agencies combine executive and judicial
functions with their rule-making authority--subverting the division of
power concept becoming laws unto themselves with feudal-like dominions in
command over the private property held by commoners. James Madison
condemned "the accumulation of all powers legislative, executive, and
judicial in the same hands, whether of one, few or many and whether
hereditary, self-appointed or elective, may justly be pronounced the very
definition of tyranny. Were the Constitution chargeable with this
accumulation of power or with a mixture of powers, having a dangerous
tendency to such an accumulation, no further arguments would be necessary
to inspire a universal reprobation of the system."6
Most recently, the federal government's appetite for power exceeds its
capacity to raise revenues. Instead of taxation and spending, Congress
prefers to subvert the rights of private property owners by imposing
unfunded mandates upon them, such as "family leave" and employer
mandates or forced "contributions" to proposed health-care
legislation. The words of Madison decrying the problems of
"mutable" policy have been drowned out amidst a flood of ever
wider calls for new government powers.
The usurpation of powers and rights belonging to the states and people by
the federal government is partly due to defects in the Constitution
itself. The framers, unfortunately, never established an effective check
or balance that state governments could invoke against the encroachment of
federal power into their proper domains. Ever since the Civil War, the
threats by states to secede or nullify laws are not taken seriously, no
matter how intrusive federal regulations become. Abuses of federal power
may only be addressed in federal courts, hardly an independent or adequate
restraint on federal authority.
The unfortunate legacy of slavery also made it more difficult to defend
both private property and federalism. The framers granted the same
constitutional protections to slave-holding as it accorded to legitimate
private property. This has led to the mistaken notions among scholars,
including noted Civil War historian James McPherson who called the
abolishment of slavery in the Thirteenth Amendment as representing one of
"the greatest seizures of property in world history." In fact,
no one can ever legitimately own another human being. The English Whigs
understood that the first right was self-ownership. The emancipation of
slaves recognized the legitimate claims by southern blacks to
self-ownership. The United Stated did not "seize" the slaves as
third world governments take over factories. The Thirteenth Amendment set
the captives free.
Following the Civil War, the southern states frequently violated the
property rights and liberties of black people. The Fourteenth Amendment
gave the federal Congress the power to protect their civil rights. This
amendment was necessary, but it also established a precedent, "a
hook" which the federal government has used to exceed its legitimate
powers. Today, federal usurpation of the domain belonging to the states
and people goes unchecked. "Liberal" scholars consider private
property rights to be government grants of privilege--to be tolerated when
convenient to the government, but no longer as a significant human right
in itself. The concept of "states' rights" holds even less
respect because it reminds one of past injustices committed by states,
rather than as safeguards against the centralization of power.
The "Bill of Rights" provides very explicit words guaranteeing
the rights of the common people. Unfortunately, words are not
self-enforcing. The constitutional contract between the people and the
government must provide incentives, counterforces, etc. to ensure that
politicians remain the servants of the people, rather than the other way
around. Even the most ingenious constitutional safeguards will wither and
die if the public no longer appreciates the importance of liberty and
property and if they can be made to believe that the crises of the day
invariably requires extra-constitutional remedies.
Modern intellectuals do not take private property seriously, nor do they
wish to constrain the makers of public policy. Ever since the "New
Deal" of the 1930s, "liberal" scholars have rejected the
belief that any economic system is proper for all periods of history. To
them, political economy does not reveal any enduring set of legal
principles. Political economy instead molds itself to the crises of the
moment. The Great Depression, The War on Poverty, Projected Environmental
Disasters, and the Health-Care Crisis, all supposedly require radical
reorganization of the economy. Property rights and the rule of law must
give way to the reformers.
In truth, no crisis is ever bigger than the Constitution. A solid
education in economics would teach that private property and markets
normally align the interests of property owners with the public. Most of
the attempts by government to eliminate poverty, regulate prices, control
macro-economic fluctuations, or otherwise manage the economy have proven
very costly and usually counterproductive. It is also probable that many
of the recent ecological scares are scientifically unfounded. Real world
problems can usually be addressed within the context of private property
and market economics.
Infrequently, a government regulation may provide a convenient route in
mitigating a particular problem of the day, but the benefits of infringing
property rights are small compared to the sheer costs of government and
the uncertainties found in the law today. Moreover the Constitution
contains an amendment process to handle situations where the need to act
is great and normal remedies appear to be inadequate. This amendment
process, however, is a slow, deliberate one which enables the people and
the experts alike to investigate, study, and analyze the problem and the
costs of alternative remedies. Prudent, reasoned solutions require time.
Neither the Constitution, nor the rule of law can long endure the blight
of a misinformed public. As friends of liberty, our eternally vigilant
task must be an educational one. The people must ever remember the words
of the founders, the wisdom of economists, and the lessons of history. Let
us endeavor to turn back the regulatory lords in Washington, the
twentieth-century pretenders to our property.
1. Bernard Bailyn, The Ideological Origins of the American Revolution
(Cambridge: Harvard University Press, 1967).
2. Thomas Jefferson, "A View on the Rights of British America"
(1774) in The Portable Jefferson, Merrill D. Peterson (editor), pp.
3. James Madison, The Federalist Papers, no. 62, pp. 381-82 (New
4. Alexander Hamilton, The Federalist Papers, no. 85, p.521.
5. James Madison, The Federalist Papers, no. 45, p. 292.
6. James Madison, The Federalist Papers, no. 47, p. 301.