Somewhere deep in their bones, Americans recognize that property is the paramount civil right—perhaps the paramount human right. Anyone who seriously studies American history, particularly that of the late 18th century, will discover that property, along with virtue, provided the foundation for American government. Indeed, the preservation of properly is arguably the chief reason we have a federal Constitution.
Ask today’s law students which concepts are most fundamental to American law and life, and they will tell you “equality and democracy”—even though most of them are upper-middleclass people from solidly propertied families. However, if you read the proponents of the Constitution—and their opponents as well—you will discover that they abhorred equality and feared democracy. True, they favored popular sovereignty—the political correctness of their age—but they were terrified of demagogues who might seek to take away their property.
The Framers of the Constitution feared state legislatures were insufficiently devoted to the protection of private property. They were concerned that many state legislatures were dominated by demagogues who, bent on redistribution of wealth, had sponsored legislation to create paper money and to release debtors from their obligations, which destroyed property values, hurt commerce, and slowed the infusion of foreign capital.
During the popular uprisings of the 1780’s, the courts in several states had shut down, making the enforcement of property rights impossible. The Constitution was designed to solve these problems by granting the federal government control over currency, forbidding state legislatures from interfering with contracts (contract being a means of preserving and transferring property rights), and setting up a Supreme Court that could ensure that property and the rule of law were preserved.
How did the Constitution guarantee property rights? And how was it that those holding federal office were to be shielded from the temptations to which those in state government had succumbed? How could the federal government be staffed with virtuous individuals capable of resisting the lure of lucre and power? One solution was electing George Washington—a veritable platonic form of virtue and honor—president, and then hoping that everything worked itself out under his guidance. To an astonishing extent, that is exactly what happened.
Washington was a brilliant leader. He deferred to Hamilton, who reinforced property rights by funding the national debt at par, creating a national bank to stabilize commerce, and suppressing the Whiskey Rebellion, demonstrating that the federal government would not allow the law to be flouted as it had been in the states before the Constitution.
The more difficult task was to set up a governmental hierarchy that would produce future Washingtons, so that the federal system would survive when the titans of our founding era were gone. As Madison makes clear in the Federalist, men are not angels: Powers should be separated so that none might wield too much; and powers should be checked and balanced so that, if one branch of the government fell into evil hands, the others could correct any imbalance. The president could veto congressional legislation, the Congress could impeach and remove executive officials or judges, and judges could determine the constitutionality of acts of Congress and the executive.
Still another check on federal power was the concept of dual sovereignty, or federalism, which produced a government of limited and enumerated powers. The federal government would be able to check some actions of the states, but the states possessed most of the governmental authority, preventing the federal government from degenerating into absolute tyranny. Almost every American high-school student (or at least those who attended 30 or more years ago) learned about the separation of powers and checks and balances—although few seem familiar with the idea of dual sovereignty.
Fewer still understand a third set of constitutionally dictated safeguards that have largely been discarded. One of these was implicit: Members of the House of Representatives were to be selected by the exercise of the franchise within the states; in all of the states, this meant those owning sufficient property to qualify as an elector. Generally speaking, voters were freeholders or the sons of freeholders; they had enough of a stake in the community to vote in a manner that safeguarded their property. The Framers knew that propertyless voters might vote to take property away from those who had it; worse still, having nothing to lose, they might sell their votes to designing demagogues who would promise to take someone else’s properly and redistribute it.
An even more interesting conservative political decision of the Framers was the method of selecting senators and the president. This was to be done indirectly, because the Founders believed that, by having the people select the electors rather than the actual candidates, the system would not produce candidates seeking to curry popular favor, but men noted for talent and virtue, capable of being trusted with high public responsibility.
Presumably, those officeholders would not be men bent on redistribution but devoted to the protection of property. Since the president and the Senate bore the delicate task of selecting judges and negotiating treaties, men with the interests of the commonwealth in mind—not men who might curry favor with the rabble—would be preferred for the Senate and presidency. Senators were to be selected by state legislatures (a paradoxical move in light of the distrust of state legislatures that had led to the Constitution itself), and presidents were to be selected by the Electoral College, an assembly of unpledged electors picked expressly for that purpose.
Unfortunately, the so-called “Progressive Era” of the early 20th century, and the constitutional amendments it left in its wake, have virtually done away with this scheme. (And what the Progressive Era did not ruin, the Warren and Burger Courts seem to have set out to demolish.) As we have seen most strikingly in the case of the Senate impeachment trial of President Clinton, the passage of the 17th Amendment, which provides for direct election of U.S. senators, has produced a body in which focus groups and polls are far more important than the welfare of the nation. Each took an oath, before they tried the case of President Clinton, to uphold the Constitution—which, as David Schippers’s book SellOut: The Inside Story of President Clinton’s Impeachment makes clear, should have led them to convict the President (or at least hold a trial with live witnesses). Virtually all of the senators ignored their obligation to hold an actual trial, and half of them ignored the evidence of obstruction of justice, tampering with witnesses, and perjury that should have led them to remove President Clinton from office. But the polls told them the American people would not have approved of his removal, and so demagoguery triumphed in the Clinton impeachment battle, as it triumphs too often over the kind of disinterested virtue once thought necessary to protect the republic and its property owners.
Another “Progressive” amendment permitted a federal income tax, which further eroded property rights by, in effect, allowing redistribution. And the rise of political parties and electors pledged to vote for the candidates of those parties turned presidential elections into shallow popularity contests, rather than solemn reflections of the nation’s property-protection and leadership needs.
By abandoning our constitutional principles, our country by now should have gone to hell. While I do not go that far, I do recognize that it is only because of divine favor, abundant land and resources (property, that is), and unparalleled technical ingenuity (protected by intellectual property doctrines) that we have remained prosperous. Surely the old adage that Cod protects children, fools, and the United States of America still rings true. But should we once again enter an era of economic turmoil, or should political leaders even more committed to redistribution than the Clinton administration ever take office, the precariousness of property rights could become acute.
Let us not forget that Locke’s Second Treatise—which is echoed in our Declaration of Independence—did not talk about securing inalienable rights to life, liberty, and “the pursuit of happiness” (whatever that means); it spoke of life, liberty, and the protection of property, as did state constitutions at the time of the framing of the U.S. Constitution. Take Pennsylvania’s, recognized as the most radical of the new state constitutions. It stated that “all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”
Perhaps part of our problem is simply that we are used to big government; it no longer frightens us the way it should. We occasionally remember that a government big enough to give us everything we want is also big enough to take it all way, but most of us are seduced by the possibilities. Too few protested when the Clinton administration, in effect, benefited from a presumption that the federal government can do anything it wants as long as it can concoct some far-fetched argument that a tenuous reading of administrative practice, statute, or a court case permits it. In other words, anything “legal” is presumed to be good, and anytime anybody can argue something is legal, it ought to be justifiable. That is the road to confiscation and redistribution—the road on which we are now travelling.
The Framers understood another dimension of decent lawmaking: There can be no order without law, no law without morality, and no morality without religion. Christian religion, at least, if it cautions against putting your faith in princes and lucre, also understands that property ownership ought to be protected as a means of creating a citizenry that can use its wealth to better the community. Jesus did urge His disciples to abandon worldly goods to preach His word, but the parables seem to suggest that He understood personal wealth could also be harbored and used by its owners to promote the interests of all.
One of the mysteries you encounter reading philosophers like Locke, and documents such as the Pennsylvania Constitution of 1776, is that they never seem to explain why we should protect properly rights. Instead, they defer to an implicit notion that God wills that we have property, just as we are regarded, in Lockean theory, as His property.
The problems we encounter when we seek to protect property do not simply stem from poor education, a wayward federal government, misconceived constitutional amendments, and courts that have forgotten that they are not legislatures. As a dead mackerel rots from the head down, today even the state legislatures and courts have forgotten about the ideals of the late 18th century. Our problems may rest just as much with state and local governments as with the federal.