Perhaps it is a delusion, like snow blindness, caused by the tons of dirty snow shoved into my driveway by the city plows and the sun’s annual disappearing act that drives even non-Scandinavians into melancholy and occasional fits of berserking frenzy, but I am beginning to be persuaded by our Chicago friend Tom Roeser that Rockford really is a constitutional laboratory, where every level of American government is running dirty experiments on their subjects.
The rats, as you may imagine, are beginning to tire. If it is not judges seizing power, or a city government sucking up to public contractors, it is county-board members working overtime to reward their friends in the real-estate development community. Several recent cases of eminent domain, particularly the “quick take” confiscation of much of Tom and Jan Ditzler’s property for a road designed to assist development (an outrage chronicled by Scott P. Richert in this issue) have made this frozen wasteland a front line in the last battles over American property rights.
When government seizes a man’s property, the victim and his friends are generally outraged. The rest of us, reading of the case in the newspaper, are apt to shake our heads between sips of coffee and mutter, “too bad,” or “he could probably have handled this better,” or even “the county needs that road.” It hardly ever occurs to any of us that, in freely exercising their powers of eminent domain, governments are merely pushing to the limit the powers of confiscation that are implied by their power to tax property and income. “The power to tax,” as John Marshall put it memorably, “is the power to destroy.” A people that allows half its income to be seized annually for taxes without anything to show for the money except more government is in no position to protest if some portion of the other half of their income is taken with (albeit often inadequate) compensation.
In a regime of high taxes, it is clear, Raoul Berger’s famous reference to property as the last human right stands in need of some qualification. Saddled with taxes and insurance payments and owing at least half of the value of their property to the real owner, the mortgage-holding bank, American homeowners have only the most tenuous grasp on their little pink houses.
Leftists, who brag about defending the common man, do not blink their eyes when the common man’s property is taken from him. After all, property is theft, in Proudhon’s words, and it developed (along with the family and social distinctions) as a corruption and deformation of an original state of equality. This is the burden of Engels’ great work on The Origin of the Family, Private Property, and the State; and, one way or another, it underlies most left-liberal policies regarding families, taxation, and the welfare state. Men and women were once free and equal, now they are not—which is too bad—because patriarchal (European) male capitalists seized power and made themselves dictators.
It is an effective—though false—argument, and if it did not lead to the brutal inefficiencies of Marxist (and, increasingly, semi-Marxist) states, the theory of natural equality would probably be universally accepted instead of being confined, at least in its most radical form, to the academic ghetto that has been created to house the simpleminded and the inexperienced and to keep them away from really important things, like fast-food franchises.
Apart from whining about the evils of communism, so-called “conservatives” do not seem to know how to defend private property. Almost inevitably, they turn to the highly speculative theories of John Locke and his predecessors (Hobbes, Selden, Grotius, and ultimately Epicurus) and declare that private property is a “natural right”—in other words, a theoretical claim derived from a hypothetical state of nature.
You see, the “conservative” holy men will tell you, once upon a time long, long ago when dinosaurs walked the earth, men and women lived on a free-and-easy basis of equality. Unfortunately, some wicked people took advantage of the situation by abusing their neighbors, and the wiser heads managed to persuade everyone to sacrifice some part of his natural rights and natural equality for the sake of peace and justice. In particular, they wanted to safeguard their property, and that is why “government” or “the state” exists partly, even primarily, to protect property rights. Natural rights do not, in this tradition, derive either from nature or (God forbid!) from the Divine Will. They exist only as the concluding proposition of a hypothetical syllogism of the type: If unicorns, before zoos were invented, once had a single horn, zoo keepers do not have the right to amputate the horn without giving the unicorn a hearing.
It should not take clever people such as Marx and Engels to spot the gaping holes in this argument. As the monarchist Sir Robert Filmer pointed out before Locke had written anything, it would be next to impossible to find total agreement for any such social contract, and even if the founders of a society were able to come to terms, they could not bind their descendants to abide by majority ride. Anarchists conclude from this that any individual is free at any time to repudiate government and go back to the state of nature (“Dogs run free, why not me?”), while Marxists have exploded the flimsy historical foundation for all traditional social institutions, including private property: If family and property are social inventions, they are neither divine nor natural and can be overthrown in the interest of promoting the true human equality that is everyone’s birthright.
It is easy to sec why “conservatives” have done such an inadequate job of defending property from the left. It is precisely the conservative heroes—the founders of classical liberalism—who gave the left its best weapon: the historical fantasy of natural equality and human rights. So when leftists demand 90 percent of a “rich” man’s income in the form of taxes, some libertarians and classical liberals on the “right” will argue that all such taxation is wrong, but most “conservatives” will simply haggle over the rates, because ultimately they do not understand that property (like the family) is neither a social or historical invention nor an abstract right that depends upon a highly dubious theory of rights that few people in the history of the world have ever accepted.
Property, almost as much as motherhood and perhaps more than fatherhood, is a basic constituent of the human condition. Man is born to eat food and procreate and to own the things on which eating and procreation depends. Even the ancient Stoics went so far in theoretically justifying the satisfaction of natural necessities. But the naturalness of property is no mere theory. Contrary to the erroneous reports that Locke (and his predecessors) had read of tribal peoples in America, there is no known society where distinctions of power and the concept of “mine and thine” are completely unknown. In the most primitive societies, the tools and weapons a man makes belong to him and his; even the great apes show a certain possessiveness toward peculiar or useful things they have found, and human beings have universally developed that simple instinct into social institutions.
Personal possessions are one thing, a liberal (on the “right” or left) might say, but the fundamental property rights concern not spears and axes but land and houses. Obviously, a tribe that builds no permanent homes but follows the buffalo or caribou herd wherever it goes will develop a ver)’ imperfect conception of real estate and property rights; nonetheless, even migratory and stateless peoples, such as the famous Bushmen of the Kalahari, regard hunting grounds and watering holes as their property. They may not exercise an exclusive right to take water or hunt game, but they do have privileged access. An alien presenting a challenge to such privileges may be answered with violence.
In this sense, the sovereign rights that nations claim over their territory are merely an extension of the property rights enjoyed by family and clan, in much the same way that the concepts of sovereignty and political authority are themselves an outgrowth of the primitive family’s power to govern itself and its members.
“Clans owning land? This is not private property at all!” exclaim the “conservatives,” because “property rights are not held by groups but by individuals.” For the past two or three hundred years, perhaps, and under the Roman Empire, but in the length and breadth of human history, landed property is more likely to be found in the hands of families, extended kindreds, and even tribes. The conservative liberal jurist. Sir Henry Sumner Maine, was essentially correct in his great book Ancient Law, where he outlined a broad historical transition from status to contract. In many early societies, including archaic Athens and republican Rome, a man’s farm goes automatically to his heirs, and while he may write a will disposing of various things he has made or acquired in the course of a lifetime, he cannot alienate the family’s land by willing it to a stranger. Under most circumstances, he may not even defy custom by excluding a lawful heir or by displaying his partiality to a younger son.
Our one-sided emphasis on individual property rights may well turn out to be a weak point in the liberal (including the “conservative”) approach. Here in Rockford, we insist on referring to “Tom Ditzler’s property,” though he thinks of it as his family home, the castle to be defended against the outside world.
This was the understanding that most Americans had of their land and houses in the founding era. Land was more than a commodity to be bought and sold at an agreed-upon price. It was the home place, Christopher Lasch’s Haven From a Heartless World, the place where the memories, perhaps even the graves of lost members were tended. The demand for an amendment protecting property)’ against search and seizure was not made by Lockean individualists who wanted to protect the rights of rum smugglers or dope smokers. British revenue officers were invading family businesses—shops and houses—in search of contraband; this was a violation of a fundamentally British sense of the home as an inviolable refuge from its enemies in and out of government. Reverence for the family home is deeply planted in the character of European man, and it is as strongly attested by ancient Greeks as by our Germanic, Celtic, and Slavic ancestors who destroyed classical civilization.
Property and status, whatever St. Augustine may have believed, are not only natural to man but part of the Divine Plan. Adam and Eve had a home place: They called it Eden. The only state of nature worth talking about is human nature, and (apart from the protections offered by the deteriorating Constitution) the only solid basis for property rights is to be found in the laws of nature and of nature’s God.