Americans entertain the peculiar idea that history—or, at least, “our history”—is the reign of continuity. In spite of all the talk about revolution, there appears to be a remarkable degree of stability in every substantial political rupture. The American Revolution was, in fact (we are told by historians), a “conservative one,” restoring the political order the British had wrecked. The not-so-civil “Civil War” was a much-needed Second American Revolution that finally rendered everyone a citizen, making the promises of the first “conservative revolution” available to human beings of all races and, eventually, to every nation on earth. The Progressive Era, New Deal, and Great Society actually reshaped the role of the federal government in the era of mass politics. However, this was invariably presented as a natural expansion and development of the original American experiment in self-government and framed in the half-clever motto: “Hamiltonian means to achieve Jeffersonian ends.”
History, in this country, is seen as a narrative without the solution of continuity. In Montgomery, one can find the George Wallace Museum and the Rosa Parks Memorial within a few yards. While the Confederate flag has recently been the object of much controversy, the men who fought under it are celebrated alongside those who destroyed the Old South. With the possible exception of the faceless Klan of the 1950’s, American history lacks villains. From Aaron Burr and George A. Custer up to Richard Nixon, revisionist historians are ever at work rendering the label of scoundrel always provisional for notable characters. While this general outlook may have some merits—after all, this is a free country; politicians are criticized when they are alive and cherished when they are dead—it also engenders some peculiar delusions.
The notion of living in a republic that is pretty much the same as the one envisioned by the Founding Fathers is indeed an enduring figment of the American imagination. In the field of politics, this, in turn, could be seen as the hallucination that this country’s moral philosophy is not so distant after all from that of the Founding Fathers. Washington, Adams, and Jefferson are considered permanent contemporaries, as their voices have been sought by politicians and historians alike to tell us something about the perennial “heart and soul” of America.
Nowhere is the separation of the America of 2007 and that of the founding era more patent than in the field of property rights. The way the Founding Fathers thought about property (and, thus, about the legitimate scope and role of political institutions) is utterly at odds with any notion of rights that has been circulating in America in the past century.
The Unanimous Declaration of the Thirteen United States is still respected, but mainly as the “birth certificate of the nation.” The fact that it is probably the document most closely related to the natural-rights doctrine ever written in the history of mankind is certainly less than cherished. The Declaration contains a sweeping array of notions about power, individuals, their rights, the legitimate ends of government; in brief, about the substance of a just political order. Thomas Jefferson was only the best representative of a revolutionary generation that grew up in a natural-rights mind-set, as political arguments based on natural rights permeate the thinking of the Founding Fathers, as well as the debates of the early republic. The Preamble to the Declaration declares all rights, starting from the colonies’ right to independence, unmistakably prescribed by the “Laws of Nature and Nature’s God.”
Although Jefferson did not mention the right to own property, the finest scholars have always argued that the “pursuit of happiness” was so broad as to incorporate property rights into the system. Ronald Hamowy explained several years ago the true significance of the “pursuit of happiness” very nicely and persuasively: Human beings “may act as they choose in their search for ease, comfort, felicity, and grace, either by owning property or not, by accumulating wealth or distributing it, by opting for material success or asceticism, in a word, by determining the path to their own earthly and heavenly salvation as they alone see fit.” In other words, the true meaning of the “pursuit of happiness” in Jeffersonian doctrine is the right to have a government that does not infringe on one’s own natural rights—on property rights, in particular.
This “classical liberalism” that was prominent at the founding, embodied in a radicalization of Lockean political thought, guarantees first and foremost full moral and political legitimacy to the pursuit of purely private interests. Such a general vision implies that the individual is portrayed in a different set of relations, with other men in the free market, and with agents acting on behalf of the government. The free-market consensual relations regulate the legitimate order of dealings with other individuals, and the natural-rights doctrine (the idea that there are certain inalienable rights that cannot be encroached upon by government) limits justifiable state actions. The boundaries of the political sphere are watertight, at least in principle: Government is there just to provide a safe environment for the individual’s enjoyment of his natural rights.
Influenced by John Locke’s political doctrine, or at least a popular version of it (as contained in Cato’s Letters, the collection of political essays written by English pamphleteers John Trenchard and Thomas Gordon in the 1720’s, or in William Blackstone’s Commentaries), the revolutionary generation thought that the rights to life, liberty, and property were absolute. The noted historian Forrest McDonald wrote that, “almost to a man, Patriots were agreed that the proper ends of government were to protect people in their lives, liberty, and property.”
However, these simple truths seemed a bit farfetched to the sophisticated scholars of later generations. The “progressive school” of history, which gained prominence in America about a century ago, forever changed our understanding of the Founding Fathers’ view of rights. The historians of the past century framed a theoretical opposition between property rights and human rights that is very important in order to grasp the world we live in today, but quite misleading when projected into the founders’ political universe.
Vernon Parrington, one of the most influential “progressive historians,” was convinced that the Declaration and the Constitution were contradictory documents, which gave shape to a “conflict between the man and the dollar” that has characterized American history ever since its origins. Influenced by the works of J. Allen Smith, Frederick Jackson Turner, and the leading figure of the progressive school, Charles Beard, Parrington popularized a fantastic clash between the rights of property and the rights of man. An unceasing struggle between persons and property, between democracy and aristocracy, was seen as the constant feature of America since her beginning. It has thus been the permanent heritage of the “progressive school” to cast the conflicting element of American history in terms of “rights of persons” versus “rights of property,” incorporated, respectively, in the Declaration and the Constitution. The current idea that property rights are an impediment to democracy (it is quite the reverse—democracy is used all over the world to hamper and curtail property rights) is the direct heir of the “progressive school” dichotomy between rights of persons and rights of property.
Such an opposition, however, is both logically unfounded and historically unacceptable. None of those who took part in the Revolution believed that the defense of the person and his rights entailed a denial of the rights of property. Although there was fervent debate over questions of legitimately or illicitly acquired property, no one sought to utilize democracy, the extension of suffrage, and political assemblies for the purpose of expropriating legitimately held properties.
The idea that property was endowed with a characteristic that approached sacrality was closely connected with love of freedom. As Edmund Morgan put it many years ago, “For Eighteenth-century Americans, property and liberty were one and inseparable, because property was the only foundation yet conceived for security of life and liberty: without security for his property, it was thought, no man could live or be free except at the mercy of another.” In short, property rights were both natural and inalienable, according to the Founding Fathers. But the meaning of all these qualifiers connected to rights has been lost in our world. When a building technique declines, its secrets are lost: What appeared simple to the architects of Gothic cathedrals remains a mystery for posterity. Likewise, current debates on rights, even when conducted in an attempt to reconstruct a lost world, lead to a complicated rendering of what used to be simple and clear in the 18th century.
The idea, expressed in clear terms in the Declaration itself, is that the only legitimate end of government is that of upholding rights whose origin precedes any law written down by man. Men are already endowed with all their rights before entering into “political society.” In this framework, which dominated the Founding Fathers’ view of a just political order, there is only one “civil right.” It arises with the very genesis of political society, and it is the individual right to be protected in the enjoyment of one’s natural rights. Individuals who have entered into political society have a “global” civil right vis-à-vis the government: the right to enjoy protection not of artificial rights—which are the fruits of changing circumstances and of the preferences of lawmakers—but of their natural rights. They are always endowed with a further natural right that, by its very nature, cannot be the object of a contract: the right to revolution, their right to protection not by the government but against the government.
Thomas Jefferson stated this view very eloquently in a letter to F.W. Gilmer, dated June 27, 1816:
Our legislators are not sufficiently apprized of the rightful limits of their power; that their true office is to declare and enforce only our natural rights . . . and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him . . . and the idea is quite unfounded, that on entering into society we give up any natural right.
For the revolutionary generation, property rights were inalienable as well as natural. As even some fine contemporary scholars are still puzzled by this, it might be appropriate to explain exactly what they meant.
The right to property entails the power to alienate the goods that form the object of this right. An individual could never exchange a single good during the entire course of his life and still fully enjoy the inalienable and natural right of property on a par with the greatest investor or real-estate owner in the world. This is so because the right to property in no way derives from market transactions. An exchange transfers rights over things, but it does not create the right. Rather, property rights derive from the very nature of human beings, first and foremost from their full ownership of themselves.
The real foundation of the natural right to property is not rights over things, but self-ownership. So the real meaning of inalienability is that one cannot deprive oneself of self-ownership, while, on the other hand, rights over tangible things are perfectly alienable. Since man cannot abjure himself and his own nature, all rights that constitute the essence of a human being are inalienable: They cannot form the object of a transaction, whether voluntary or involuntary.
The paradox of inalienable rights—all of which are, of course, natural rights—lies precisely in the fact that no one can legitimately deprive himself of them. It is now easy to comprehend why property rights took on such immeasurable importance for 18th-century thinkers, and for Americans, in particular. A property right is the right to dispose fully and freely of one’s own body, of one’s own faculties, of the fruits of one’s labors, and of all that is acquired without violating the legitimate rights of others. These rights are “inalienable,” as they cannot be estranged from the subject, either by the holder of these rights or by anyone else. These rights cannot be disposed of by the government, despite the fact that, in the Founding Fathers’ understanding, government was the most typical violator of such rights. In the 18th century, the adjectives natural, inalienable, inherent, and essential always appear as synonyms. The various usages of the terms appear to us less than rigorous because, to them, the doctrine to which these terms refer was clear and familiar. Inalienable simply means that no one can deprive himself (or his descendants) of these rights, not even voluntarily. But inalienability bears the imprint of nature. Nature makes certain rights inalienable by branding them with her own imprint. By creating man, “nature’s God” has also endowed man with natural and inalienable rights. These two characteristics of the rights imprinted by nature are inseparable.
Another thing that is not usually entirely appreciated today is that the classical-liberal doctrine of rights is not “conservative” at all, but revolutionary. A natural view of rights commands not only a sacred respect for property, but an indictment of unjust acquisitions. The Founding Fathers were under the influence of a moral doctrine that did not consider legitimate any kind of property. In their view, the “feudal” overlords had built up their wealth thanks to the favors granted by political power and by a system that could not be reconciled with the natural order. These favors had been paid, in turn, by those who had far less access to political power and, thus, to the iniquitous means of acquiring property. Though seldom brought into political practice, there is, at the core of the founding, a genuinely revolutionary program designed to distinguish between just and unjust property.
The Founding Fathers’ political world was very different from ours in another respect. They not only considered property a sacred, natural, and inviolable right but thought that the community was no more than the sum of the individuals composing it. Differing very sharply from the teachings of Jean-Jacques Rousseau, the prophet of the French Revolution, they believed that there was no interest in society transcending the individual. That is, the Founding Fathers lacked the collectivist view that is conducive to the acceptance of a redistributive approach. In a very famous letter of 1789 on the theme of generational sovereignty, Thomas Jefferson wrote to James Madison that “What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of individuals.”
In 1793, during a debate on the proposed Jacobin constitution in France, Robespierre advanced the notion that property is purely conventional and offered the most synthetic definition of such an idea: “Property is the right that each citizen has to enjoy and to dispose of the portion of goods that is guaranteed to him by the law.” Although, for many decades, America would still consider such a view utterly foreign to her political heritage, it was this conception that gained prominence here as well as all over the world.
The whole political history of the United States could be written with the crystal-clear doctrine of natural rights espoused in the Declaration as its point of departure, followed by the slow but constant progress of the Jacobin idea that only the law makes you free and, eventually, an owner.
The way a community looks at property rights, as the history of Marxism shows conclusively, is the most important single factor for the organization of a political order. The decline of the Novus Ordo envisioned by Jefferson and his generation followed the decline of their ideas on property rights. It could not survive the more sophisticated ideas on property that became fashionable many years later. The Founding Fathers were too naive to believe it possible that a right to a certain quality of life could be put forward, or a right over another person’s goods, or the right to have a minimum income guaranteed through taxation.
After the refined analyses of Bentham and Marx, to name just two, it is claimed we cannot any longer believe that it is nature that prescribes man’s rights. However, the lawgivers are no more than two. It is either “Nature and Nature’s God” or the Prince (viz., in the American political jargon, Congress). We stand today in the wake of a protracted spell of juridical absolutism: The ancient notion “Quod principi placuit legis habet vigorem” (“What pleases the Prince is law”) has been enormously refined but not posited on different grounds. It is up to the volition of several assemblies of persons—at times, to nine judges—to decide whether your share of wealth is consistent with the welfare of the community and what portion of your goods is properly yours.
American conservatives (who have done as much to undermine the simple natural-rights doctrine of the origins as their liberal counterparts) must now face the fact that the republic of today is based much more on Robespierre’s ideas than on those of Jefferson. Whatever freedoms, rights, or properties one can enjoy are the gracious gift of legislators and courts. And this is the most obvious proof that any link to the political world of the Founding Fathers has been severed.