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Part I: Historical Context

1: Bacon and Locke

When Francis Bacon wrote “Nature, to be commanded, must be obeyed,” he had in mind the inventions of the magnetic compass, the telescope, and gunpowder. Inspired by these, he proposed a program of what we today would call “scientific research,” aimed at developing new technological wonders. Technology was not new to the world in 1620, of course. The use of tools goes back to the dawn of man; tool making is a function of man’s nature as a thinking being. What was new in Bacon’s proposal was the idea of making a conscious, systematic effort to discover new knowledge of nature, on the one hand, for the practical purpose of developing new forms of technology, on the other.

The word “science” did not exist in 1620. To be sure, Galileo was already practicing science, as had many others before him, but such genuine science had not yet forged an identity of its own apart from the field of study out of which it would grow, which was called “natural philosophy.” Natural philosophy looked back to Aristotle. It studied things in nature in order to discover their “essences.” It relied on syllogistic reasoning as much as on direct observation. Its purpose was philosophical rather than utilitarian. Aristotelian natural philosophy, which was still regnant in Bacon’s time, did not, and indeed could not, extend man’s “command” of nature in a practical way. This Bacon set out to change, advocating among other things the use of experiments and quantitative measurement to help man understand nature in ways that would prove useful to him.

In stating that “nature, to be commanded, must be obeyed,” Bacon assumed that it would be possible for man to command nature on a greater scale than he was doing in 1620. In the event, the revolution in thought to which he helped give rise, now known as the Enlightenment, would eventually issue in an explosion of invention and technology, which we call the Industrial Revolution. This would extend man’s command of nature far beyond what anyone could have imagined possible in 1620.

But in addition to assuming that it would be possible for man to command nature on a much greater scale, Bacon also implied that it would be right for him to do so. He could not have foreseen the Industrial Revolution, and we cannot know if he would have approved of it. But the assumptions underlying his dictum, that it is possible for man to command nature on a grand scale and that it would be right for him to do so, would become bedrock premises upon which the edifice of industrialism would rise.

In 1688-89 the English deposed their king, Charles II, and replaced him with William of Orange from the Netherlands. In forcibly removing the Stuarts, the English rejected the European model of divine right monarchy and paved the way for eventual Parliamentary supremacy. But there was nothing explicit in English constitutional history to justify such an act as the coup d’état of 1688. John Locke’s Two Treatises of Government, which he had written some years earlier but did not publish until 1690, provided a moral justification for the Glorious Revolution.

Locke’s Second Treatise changed the course of political philosophy. In it he developed his revolutionary conception of natural rights. The idea of rights was not new with Locke. The idea of specific limitations on the power of the English Crown, such as the trial by jury requirement, was at least as old as Magna Carta. Initially, the rights of Magna Carta were grounded in nothing more than the physical force which the English barons brought to bear on King John to extort his “agreement” to the document. Over time, these rights acquired the legitimacy afforded by tradition. What Locke achieved was to take this idea of traditional rights and provide it with a moral base, one grounded in the nature of man. The idea of natural rights was new in the history of mankind.

Locke started from the idea of a “state of nature.” If there were no government, if men lived in a state of nature relative to each other, there would still be right and wrong, things men ought and ought not to do. Locke referred to these moral principles collectively as the “law of nature.” The means that men have to discover this natural law is their faculty of reason. Locke said that the law of nature is reason. Or, as Jerome Huyler has suggested, the fundamental moral tenet implicit in Locke’s conception of natural law is “follow reason.” 1

Locke held that, because men have an innate drive to preserve their own lives, it must be a law of nature that they so act. And if nature dictates that they so act, then they must have a right so to act.2 Locke’s political philosophy derives from this most fundamental of rights, the right of self-preservation. And since all men are equally human, all have an equal right of self-preservation. From this follows the obligation to refrain from harming other men.

 

And Reason, which is that Law [of nature], teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.3


All men are equal, for Locke, precisely in the sense that they possess equal rights in the state of nature, “Equality … being that equal Right that every Man hath, to his Natural Freedom, without being subjected to the Will or Authority of any other Man.” 4

What kind of “harm” would constitute a violation of a man’s rights? The use of physical force against him. “Force without Right, upon a Man’s Person, makes a State of War.” 5 Specifically, it is the aggressor, he who first resorts to the use of force, who violates rights. “And therefore it is lawful for me to treat him, as one who has put himself into a state of war with me, i.e., kill him if I can; for to that hazard does he justly expose himself, whoever introduces a State of War, and is aggressor in it.” 6 If, in the realm of human affairs, reason is the law of nature, then the introduction of the use of physical force is, for Locke, its antithesis. The initiation of the use of force against a man constitutes a violation of his natural right of self-preservation.

In the state of nature, in the complete absence of government, it is the responsibility of each individual to enforce the law of nature for himself. In practice, this means that it falls to each individual to exact punishment or reparations from anyone who initiates the use of force against him. But because someone who did so violate a man’s rights would evince himself to be a potential threat to all men, any man could justifiably take it upon himself to punish such a violator, much as one could take it upon oneself to hunt down a wild animal that had attacked a neighbor or his livestock.

There are obvious problems with enforcing the law of nature in this way. Men do not agree on the “statutes” of the law of nature, says Locke, nor do they make reliable judges or executors in their own cases. It is to overcome these problems that men institute government. The purpose of government is to give effect to the law of nature, and, thus, to men’s natural right of self-preservation. The written laws of a polity, therefore, should be consistent with the requirements of the law of nature. They should be made known to all, and, since all men possess the natural right of self-preservation to the same extent, the laws should apply to all men equally and should be enforced impartially.

In any society based on Locke’s principles, one which abjures the initiation of the use of physical force in human relations, the basis for social interaction will be voluntary cooperation. This is the society of contract. In such a society, the only positive obligations that exist among men are those they contract voluntarily. Locke extends this principle to men’s relationship to government. Under his conception, government is a kind of agent hired by the people to perform a specific function, to secure their natural rights. The government’s responsibility to the people is a fiduciary one. It follows, said Locke, that the only legitimate government in a society of contract is one to which the people consent voluntarily.

In the thought of Locke there are two bases of political legitimacy: government must originate in the consent of the governed, and it must secure their natural rights. A government which failed on either of these points would not be a legitimate one. No government, even one which enjoyed the consent of an overwhelming majority of its citizens, could be legitimate if it failed to secure their “unalienable” rights:

 

For a Man, not having the Power of his own Life, cannot, by Compact, or his own consent, enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases.7

 

Consent of the governed, in and of itself, can never constitute the sole basis of political legitimacy.

Elsewhere Locke explained that the authority of government to intervene by force in the lives of individuals is only the authority delegated to it by the individuals that constitute the citizenry.8 (Therefore, that authority extends no further than to what the law of nature would authorize those private individuals to do in the state of nature. In the state of nature, the law of nature authorizes only the defensive use of force, or its use in retaliation against those who initiate its use. This would then be the moral limit of its use by government, although Locke himself never explicitly drew this conclusion.)

According to Locke, when a number of free individuals living in the state of nature agree to form a government, every man within the territory affected is entitled to vote as to which form of government to adopt, and everyone is morally obligated to abide by the majority’s decision. A government chosen in this manner, said Locke, can fairly claim to enjoy the consent of the governed. Locke’s ideas that political legitimacy requires the consent of every man and that this requirement is satisfied by including every man in a process of decision-making by majority rule seem to sanction democracy as the proper form of government. Indeed, Locke tended to favor the rule of democratic majorities, since he was writing to counter abuses by monarchical rule. He therefore tended to portray democratic majorities as a welcome counterpoise to monarchy.

On the other hand, he was not unaware of the possibility of abuses of the rights of individuals by democratic majorities. He said that democratic majorities are not morally free to enact any measures they choose, any more than monarchies are. Locke considered even democratic governments to be a potentially dangerous threat to the rights of individuals.

As a countermeasure to the potential for majority tyranny, Locke advocated certain institutional safeguards. Among these were the rule of law, equality before the law—specifically for lawmakers themselves, who were to be given short terms of office and returned to civilian life forthwith—and the separation of the legislative from the executive, with the former enjoying superiority. Locke did not believe that paper declarations of the rights of individuals would ever be sufficient to secure those rights. He preferred instead such institutional safeguards as would equalize the forces within a polity, creating a kind of political balance of power. Locke’s attention to the engineering of a proper balance of political energy, his emphasis upon the architecture necessary for a political edifice to withstand internal and external stresses and strains, we will see repeated by the Americans a century later at the Constitutional Convention in Philadelphia.

Locke was clear that when institutional safeguards fail, majorities are not morally permitted to act arbitrarily. Acts of government that are contrary to the law of nature, that violate, rather than secure, the natural rights of individuals, are not morally binding upon the governed. A government that violated the natural rights of a citizen would initiate a state of war between itself and that individual. If a government engaged in a long-standing pattern of such abuses, if it failed in its fiduciary responsibility to its clients, the people, then it would be incumbent on those people to “fire” the government in favor of a new one. This we call the right of revolution.

For Locke, the fundamental purpose of government is to secure the right of the individual to preserve his own life. In practice, this means securing the individual’s autonomy, his freedom to act according to the dictates of his own mind. The autonomy which Locke accorded to the individual distinguishes his thought from that of all earlier political philosophers. Locke had borrowed the idea of a right of self-preservation originating in the state of nature from Thomas Hobbes. But, whereas Hobbes had advocated an all-powerful sovereign, effectively wiping out the fundamental liberty he had attributed to the individual in the state of nature, Locke more logically sought to carry over the individual’s natural autonomy into civil society. The difference between the two on this point stems from their opposing views of the efficacy of reason.9

Hobbes believed that human reason does not provide man with valid knowledge of reality. Thus, men have no means of reaching a common understanding on matters of mutual concern, and their only means of settling differences is violence. They tend to pursue their self-interest with no rational regard for other men. When left to themselves, in a state of nature, men tend to carry on a continuous war of all against all. Hobbes believed that the only way to avoid this war was for men to surrender their autonomy to an all-powerful sovereign who would, in effect, force them to live in peace.

Locke, in contrast, believed in the efficacy of reason. He believed that most men are capable of understanding the need to abide by certain fundamental moral principles, if those principles are given effect in a proper political context. This led Locke to fundamentally different political conclusions than Hobbes had reached. Where Hobbes would institute an all-powerful government, effectively depriving the individual of all freedom, Locke would erect a government strictly limited, mainly to keeping the peace among private persons, thus reserving to the individual a broad sphere in which he would enjoy the liberty to think for himself, to act accordingly, and thereby to secure his own self-preservation.

The basis that Locke provided for the right of self-preservation, however, man’s natural propensity to pursue self-preservation, is inadequate. Animals have a similar propensity, but only man has rights. Man’s rights therefore must be grounded in something unique to man—which is, of course, his faculty of reason. Locke himself came close to making this argument. He recognized that reason is man’s distinctive means of knowing reality, and that it is, therefore, his guide to securing his self-preservation. He recognized that man is a creature of free will, and that the seat of the will lies in man’s faculty of rationality. He even goes so far as to say:

 

The Freedom then of Man and Liberty of acting according to his own Will, is grounded on his having reason, which is able to instruct him in that Law he is to govern himself by, and make him know how far he is left to the freedom of his own will.10

 

Man’s liberty, in other words, is grounded in his having reason. But he meant that man’s reason permits that a man be left free, because it is by means of his reason that he is able to control his actions so as not to pose a threat to other men. This is indeed true, but what Locke never did say is that man’s dependence on reason requires that he be free.11

An animal is guided toward self-preservation by instinct. Its strategy for keeping itself alive is predetermined. All animals of a given species in a given environment tend to keep themselves alive in about the same way. There are no individualistic beavers building their shelters in revolutionary new ways like Frank Lloyd Wrights of the riverbank. But man’s strategy of self-preservation is not predetermined. Because he can reason, man has the ability to discover new and better ways of keeping himself alive. There simply is no single right way for a man to live.

This is not to suggest that there are no objectively valid principles by which a man ought to live. Indeed, there are such principles, and one of the most fundamental is that a man ought always act in accordance with reality. Since man’s means of knowing reality is his faculty of reason, this principle can be stated alternatively as “Always act rationally.” It is precisely because a man’s life depends on his always acting rationally that he requires freedom, because to act rationally means to act in accordance with the dictates of one’s own judgment, and one can only act in accordance with one’s own judgment if one is free to do so, i.e., if one is not physically constrained from doing so by other men. Man’s faculty of reason both permits him to be free, as Locke pointed out, and it requires that he be free.

The right of self-preservation is the right to think for oneself and to act accordingly. It is the right to do everything necessary to preserve one’s life according to one’s own best judgment. To say that one has a right to preserve one’s own life is to say:

 

  1. that it is right that one do so;
  2. that one is morally entitled to expect other men not forcibly to prevent one’s doing so;
  3. that one is entitled to require government to enforce that expectation; and
  4. that one is entitled to expect government itself to refrain from forcibly preventing one’s doing so.

The right of self-preservation is the most fundamental of rights; it is the right from which all other rights derive. One of those other rights, though derivative, is itself indispensable to self-preservation; it is the right of private property.

 

The State of Nature has a Law of Nature to govern it, which obliges every one: and Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.12

 

In places, Locke uses the term “property” to refer collectively to the sum total of men’s natural rights, to their rights, considered collectively, to “Life, Liberty, and Estates.” In other places, he uses it to refer exclusively to their right to their “Possessions” or their “Estates.” Under the former usage, the securing of their “property” constitutes the sole reason for men to institute government. Under the latter, it constitutes an important part of their reason for doing so. Either way, it is clear that Locke considered the securing of one’s material possessions to be indispensable to securing one’s self-preservation.

As Locke had it, just as the right of self-preservation originates in the state of nature, so also does the right of private property. Just as a man has a right to act to preserve his own life, so, and for the same reason, has he a right to appropriate to himself those things, including land, on which he depends for his survival. According to Locke, what gives a man warrant to appropriate any specific item, or any specific plot of land, is his labor. A man owns his labor, so anything with which he “mixes his labor” thereby becomes his property. Through his labor, a man has a right, in the state of nature, to amass as much property as he can make use of, but no more than this.

Locke held that a man does not have a right to gather so much fruit, for example, that some of it spoils before he can use it. But of money, say, gold and silver, a man may accumulate as much as he is able to, because money does not spoil. Money, said Locke, comes into being by virtue of the mutual consent of men, but outside the bounds of civil society. It is money that gives rise to inequality of wealth among men, and Locke saw such inequality of wealth as existing prior to civil society. So property and inequality of wealth are things to which man has a natural right, a right that precedes the instituting of civil society.

For Locke, a natural right is a right that pertains in the state of nature. But earlier I defined “right” as incorporating four distinct propositions:


  1. that it is right for one to do such-and-such;
  2. that one is morally entitled to expect other men not to forcibly prevent one’s so doing;
  3. that one is entitled to require government to enforce the latter expectation; and
  4. that one is entitled to expect government itself not to forcibly prevent one’s so doing.13

The first two of these propositions are purely moral, and they apply, therefore, in the state of nature (as well as in civil society). But the second pair of propositions are necessarily political; they apply, that is, only under government. By this definition, therefore, the concept “natural right,” comprising as it does all four propositions, does not apply in the state of nature. There are no rights in the state of nature. Natural rights are “natural” not because they apply in the state of nature, as Locke held, but, rather, because they derive from the nature of man.

The natural right of private property, for example, derives from man’s right of self-preservation. If it is right that a man do everything he can to preserve his own life, then it is right that he labor to produce the material goods on which his life depends. And if it is right for him so to labor, then:

 

  1. it is right that he should possess, use, and dispose of the product of his labor as he chooses;
  2. he is morally entitled to expect other men not to forcibly prevent his so doing;
  3. he is entitled to require government to enforce this expectation, and
  4. he is entitled to expect government itself not to forcibly prevent his so doing.

Note that these four propositions apply uniquely to rational beings. Rights derive, in other words, from man’s nature as a rational being. (This is the reason that animals do not have rights.)

On the status of the right of property in civil society, Locke said:

 

For in Governments the Laws regulate the right of property, and the possession of land is determined by positive constitutions.14

 

Did he mean that in civil society the right to own land is merely conventional rather than natural, meaning that governments are morally free to alter or abridge property rights in land as they choose? No. Locke had obviously been at pains to show that both property itself, and inequality of property, are not products of civil society but enjoyed an existence prior to it.

Locke was unequivocal that the primary purpose of men’s entering into civil society is the preservation of their property. Clearly, and about this he was explicit, it would be absurd for civil society to be permitted to nullify the very purpose for which it was voluntarily called into being.

 

The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end of Government, and that for which Men enter into Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos’d to lose that by entering Society, which was the end for which they entered into it, too gross an absurdity for any Man to own.15

 

What he meant when he said that in civil society “possession of land is determined by positive constitutions” is that under government a man may own more land than he can make use of, but that he would not hold the surplus by natural right. The land he did make use of he would indeed own by natural right. This seems to be how Thomas Jefferson understood Locke, as I shall discuss in the next chapter.

In his disquisition on property, Locke acknowledged the connection between property and self-preservation. And, while he fully appreciated the importance of individual autonomy, nowhere did he elaborate on the connection between individual liberty and the right of property. This is a connection worth exploring. In broad outline: in order to preserve his life, a man must be able to act freely; and in order to be able to act freely, he must be free to acquire, possess, use, and dispose of property as he chooses.

The whole range of “natural” rights, including, for example, freedom of religion, freedom of speech, and the right to bear arms, are possible only in a context of private property. Try to imagine, for example, freedom of the press in the total absence of private property. The only alternative to privately owned property is collectively owned property, which must mean, in practice, government-owned property. What could possibly be the meaning of “freedom of the press” if the government owned everything used by the press, i.e., the land, the buildings, the machinery, the paper, even the ink, as well as the trucks used to transport the newspapers and the retail outlets which distribute them? Under such circumstances, the government would be the press, so “freedom of the press” would be a nullity.

The status of the right to bear arms would be similar. If the government owned all the raw materials out of which arms are manufactured, all the factories that made them, and all the facilities for transporting and distributing them, then the government would be the arms supplier for the nation. As such, it would have total control over the people’s “right to bear arms,” which it could extinguish at will.

Or consider freedom of religion. Separation of church and state would be impossible if the government owned all the land and all the buildings in which religious worship could take place. Any attempt to keep the state fully and consistently separated from religion would necessarily mean that religious worship could occur in no place whatever. (Consider the way in which religious expression today is being banished from the public square under precisely this logic.)

In the absence of property rights virtually no other natural rights are possible. The extinguishing of freedom of religion, freedom of speech, and the whole range of individual rights in the Union of Soviet Socialist Republics was not an aberration but a fully logical development that followed from the original abolition of private property. Property rights are the sine qua non of all other natural rights. Without property rights, there can be no such thing as individual liberty.

Consider that in the United States today, in those instances in which the right of private property is relatively secure, other rights are appreciably more secure than they are in those instances in which property rights have been diminished. For example, privately owned property used for commercial purposes ought to be every bit as private as property used for a person’s home. But private property used for commerce has long been classified as “public.” In consequence, it is subject to a degree of government regulation that would be unthinkable in the case of a private home.

As of this writing, for example, the government may not require the owner of a private home to install facilities at his own expense to accommodate the wheelchair-bound. Yet the government may require this of the owner of private property used for a “public,” meaning commercial, use. Today, the government may not prohibit an individual from smoking a cigarette in his own home, but it may prohibit him from doing so in a privately owned restaurant open to the “public,” even if the smoker has the permission of the restaurant’s owner. The right of free speech, when employed in advertising a product or service for commercial purposes, may also be regulated, and thus violated, by government in ways that non-commercial speech may not (yet) be regulated.

As another example, consider the regulation of the airwaves. The airwaves themselves have long been classified by the government as public property. In consequence, the U.S. Government is able to regulate the content of what passes over the airwaves in ways that it may not regulate speech that emanates from privately owned printing presses and is distributed on privately owned paper, in private trucks, to private retail outlets. The Federal Communications Commission, for example, is able to require, as a condition of issuing a broadcast license, that private companies include specified amounts of “children’s programming.” Yet imagine the uproar that would ensue (one would hope) if the government instituted a Federal Newspaper Commission charged with licensing newspaper publishers on condition that they agree to include certain kinds of content in their papers.

Then there are the public roadways. As of this writing, the government is not yet permitted to enter a private home without probable cause to discover whether illegal drugs are being used. But on the public roadways armed agents of the government are now permitted to stop motorists without probable cause in order to ensure that they are not intoxicated.

Two developments in the spring of 2014 illustrate the dependence of other rights upon property rights. The right to bear arms, which is a corollary of the right of self-defense, has been under furious assault by the liberal establishment in the United States. Unable to defeat head-on the Second Amendment’s protection of that right, the Left might have hit upon a way indirectly to render the Amendment moot. In October of 2013, the Doe Run Company announced that they would shut down their lead smelting plant in Herculaneum, Missouri rather than install expensive new air pollution control equipment mandated by the EPA.16 The smelter is the last in the United States that produces lead bullion, used to make ammunition, from raw lead ore.17 The closing will make it more expensive to supply ammunition to American gun owners, and it presages the eventual extinction of the practical ability to exercise the right to bear arms. When property rights are so eroded that the government is able to regulate businesses out of existence, in this case in the name of preventing pollution, then no rights are secure.

Just as the right to bear arms has been under assault recently, so has freedom of religion. A statute in Arizona that would have guaranteed the right of any business owner, such as a Christian baker of wedding cakes, the right to refuse service for religious reasons to any customer, such as a homosexual couple planning to get married, was defended by its proponents as a defense of religious liberty, which it was. But in a free society, any business owner should be free to deny service to any customer for any reason whatsoever, because his commercial enterprise is his private property. It should be no different than denying someone entry into one’s own home. If secure property rights had been in place in Arizona, there would have been no need for a statute to protect certain rights of religious property owners (thus making the exercise of those rights dependent upon one’s religious affiliation, which would have been unjust to atheists).

We are currently witnessing the banishing of religious expression from the public square in the United States. Since commercial enterprises have long been considered “public,” it was only a matter of time before the Left went after business owners for practicing religious-based discrimination. Property rights afford one the indispensable, physical ground on which to stand when exercising one’s rights. Without that ground, as the Arizona case illustrates, individuals can literally be forced by the government to violate their most sacred beliefs.

These are a few examples out of many that suggest that, in the absence of full property rights, other rights are less secure than they would otherwise be. Individual autonomy without private property is a chimera. The economy of the United States today is only partially based on private property, and that proportion is diminishing by the year. Yet the extent to which we still enjoy a degree of property rights—and, therefore, freedom—allows us the illusion that we can continually chip away at the right of private property without endangering such rights as freedom of religion, speech, and press.

If property rights are necessary to the autonomy of the individual, they are also largely sufficient to the purpose.18 Imagine a polity in which the right of private property were fully and consistently sacrosanct, in which all property were private except that required for essential government functions, and in which any individual could use his property in any way he chose so long as he refrained from physically harming the person or property of another individual. Under such circumstances, an owner of a newspaper would enjoy complete freedom of the press even in the absence of a specific constitutional protection of that right. His freedom to use his land, buildings, equipment, paper, ink, delivery trucks, and retail outlets as he chose, so long as he refrained from physically assaulting anyone, would amount to complete and total freedom of the press.

Likewise, a religious congregation that was free to use its property, its land and the church upon it, entirely as it chose would, in effect, enjoy complete freedom of religious worship. And the right of its members to possess, use, and dispose of their money as they chose would prevent the government from requiring them to contribute to the support of their own religion or any other one; it would prevent the government, in other words, from effecting an establishment of religion.

The need to enumerate such specific rights as freedom of religion and freedom of speech arises only in the absence of a full, consistent, and properly implemented system of property rights. By “properly implemented” I mean a system based on the understanding that the only justification for government interference with a man’s freedom to possess, use, and dispose of his property must be that he has initiated some sort of physical harm against another individual or his property. The right of private property is freedom. It is not merely a part of what constitutes freedom, much less is it a dispensable appendage to freedom. The right to possess, use, and dispose of the product of one’s labor and anything else one owns is both necessary and sufficient to render the individual autonomous. It is therefore indispensable to his self-preservation.

John Locke and Francis Bacon were both part of the same intellectual movement. Locke wrote, almost echoing Bacon:

 

He that first invented printing, discovered the use of the compass, or made public the virtue and right use of quinine, did more for the propagation of knowledge, for the supplying and increase of useful commodities, and saved more from the grave, than those who built colleges, workhouses, and hospitals.19

 

A direct outgrowth of Bacon’s call to arms in the campaign to command nature was the Royal Society of London for Improving Natural Knowledge, founded at Gresham College, Oxford in 1660. With such members as Isaac Newton and Robert Boyle, the Society explicitly dedicated itself to discovering new knowledge of the world and utilizing it to extend men’s technological command of nature. Boyle, for example, discovered that the volume of a confined gas decreases proportionally as the pressure increases. John Locke was one of the Society’s first Fellows. He was also a friend and long-time correspondent of Newton. And he was an executor of Boyle’s estate and fulfilled a promise to his “chief scientific mentor” by publishing in 1692 Boyle’s “History of the Air,” which Locke received in fragmentary form and largely rewrote himself.20

Locke’s own intellectual output, though not technological in nature, represented very much the sort of effort to extend men’s mastery of the world that Bacon had advocated. As Neal Wood has noted, Francis Bacon had contemplated a wide-ranging, unified science comprehending all fields of intellectual endeavor. He compiled a “Catalogue of Particular Histories” in which he listed each separate field of knowledge to be included. The seventy-eighth item in Bacon’s Catalogue was the science of knowledge itself, what we call epistemology, and which Bacon recognized needed to be explored and placed on a solid logical footing. As Wood points out, Locke answered this call from Bacon with his Essay Concerning Human Understanding.21

Another necessary requirement of the Baconian enterprise was the removal of a certain artificial obstacle to men’s ability to make use of their faculty of reason, that obstacle being established religion. Established religion aims at enforcing established ways of thinking. The example nonpareil of man’s commanding nature is the Industrial Revolution. It has taught us, as nothing else possibly could have, that the advancement of man’s command of nature thrives in the presence of free minds, countless numbers of them, extending the boundaries of man’s knowledge on a thousand fronts into realms of endeavor previously unimagined. Where Baconism gives rise to a Galileo, discovering hard astronomical evidence that the earth revolves around the sun, established religion answers with the Inquisition, forcing Galileo to deny the conclusions of his own mind. What the Baconian project required was the antithesis of what established religion aspires to. Locke fulfilled that requirement with his Letters on Toleration, in which he made the case for disestablishing religion.

Having validated man’s fundamental means of understanding reality, and having made the case for freeing that means from artificial control, Locke then addressed a third requirement of the Baconian project, the need for freedom of action. It avails men little to be able to think their own thoughts and to communicate them freely if they are not free to act upon them as well. Locke’s exploration of The True Original, Extent, and End of Civil-Government (the subtitle of his Two Treatises) represents an attempt to discover the natural laws governing human association. In it he identified the political principles, including the centrality of property rights, on which individual freedom of action depends.

Just as Boyle had sought to understand the laws governing the behavior of gasses so as to extend men’s mastery of them, Locke sought to discover the laws of human nature in order to afford men the ability to alter and fashion their political institutions to accord better with those laws. Wrote Locke, “God … hath also given [men] reason to make use of [the world] to the best advantage of Life, and convenience.” 22 With these words, Locke implies that man can command nature, to use Bacon’s term, and that it is right for him to do so. Property rights would prove indispensable to man’s making use of the world. They would enable him to command nature on an industrial scale.

A century after the appearance of Two Treatises, a nation would come into being uniquely poised to pursue the Baconian command of nature and fundamentally committed to securing the property rights necessary to achieve it.

 

Notes

  1. 1. Jerome Huyler, Locke in America (Lawrence, KS: University Press of Kansas, 1995), 95.
  2. 2. John Locke, Two Treatises of Government, ed. Peter Laslett (London: Cambridge University Press, 1960), I, 86.
  3. 3. Ibid., II, 6, 8-11.
  4. 4. Ibid., II, 54, 10-15. Emphasis in original.
  5. 5. Ibid., II, 19, 26-27. Emphasis in original.
  6. 6. Ibid., II, 18. Emphasis in original.
  7. 7. Ibid., II, 23, 4-8. Emphasis in original.
  8. 8. Ibid., II, 135, 6-23.
  9. 9. W.T. Jones, A History of Western Philosophy (New York, Chicago, San Francisco, Atlanta: Harcourt Brace Jovanovich, Inc., 1969), 3, 136.
  10. 10. Locke, Two Treatises, II, 63, 1-5. Emphasis in original.
  11. 11. See Ayn Rand, “Man’s Rights” in The Virtue of Selfishness, (New York, NY: New American Library, 1961).
  12. 12. Ibid., II, 6, 6-11.
  13. 13. One can have a right to do specific things that are not morally right. It is morally wrong to lie, but in order for a person to be free to speak the truth, he must be free to tell lies.
  14. 14. Locke, Two Treatises, II, 50, 16-18.
  15. 15. Ibid., II, 138, 1-8. Emphasis in original.
  16. 16. North America’s Largest Lead Producer to Spend $65 Million for Environmental Violations at Missouri Facilities, United States Environmental Protection Agency, press release dated October 8, 2010, accessed December 17, 2014,
  17. http://www.epa.gov/region07/cleanup/doe_run/pdf/hq_news_release_R336-100810.pdf.
  18. 17. There are still several smelters that produce recycled lead.
  19. 18. There would remain the question of the exercise of individual rights, such as the right of free speech, in places that are legitimately public, such as government buildings.
  20. 19. John Locke, Essay Concerning Human Understanding, ed. Alexander Campbell Fraser (New York, NY: Dover Publications, 1959) IV, 12, 12.
  21. 20. Huyler, Locke, 69.
  22. 21. Neal Wood, The Politics of Locke’s Philosophy (Berkeley, CA: University of California Press, 1983), 77.
  23. 22. Locke, Two Treatises, II, 26, 1-3.

 

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2: The United States

[A]ny polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance.… Otherwise, too, law becomes a mere covenant … “a guarantor of men’s rights against one another”—instead of being, as it should be, a rule of life such as will make the members of a polis good and just.1

—Aristotle

 

John Locke, as we have seen, departed fundamentally from this view of government. He held that the purpose of government is indeed merely to guarantee “men’s rights against one another.” A government committed to securing individuals’ rights of life, liberty, and property is antithetical to one committed to ensuring that individuals lead good and just lives. To embrace one is necessarily to reject the other. If government exists to ensure that the governed lead “virtuous” lives, then there can be no such thing as individual rights. But if government exists to secure those rights, then it may not, beyond enforcing prohibitions against physically injuring others or their property, force people to lead lives of “virtue.”

 

Adams

When the Americans dedicated their new nation to the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness,” they implicitly rejected the older, Aristotelian conception of the purpose of government. John Adams was explicit in his rejection of that conception. He saw man as a fundamentally rational being possessed of free will. To deny such a being his liberty for the sake of forcing him to live virtuously would be to violate his nature. “[A]n enemy to liberty,” he wrote, is “an enemy to human nature.” 2

Among the important books of the time, Montesquieu’s Spirit of the Laws figured prominently. In it the Frenchman elaborated a conception of virtue that emphasized frugal living and the subordination of one’s own interests to the public good. Adams, in his Defence of the Constitutions of the United States, criticized Montesquieu for attempting to design a constitution for an unselfish kind of man who never did and never would exist.3

Adams leveled similar criticism against the ancient Spartan conception of virtue, which was enjoying a vogue among some European and American reformers. He criticized the Spartan lawgiver, Lycurgus, for stifling human nature in his effort to shape a new, public-spirited man. “[I]t was necessary,” said Adams, “to extinguish every other appetite, passion, and affection in human nature.” He criticized…

 

…the equal division of property; the banishment of gold and silver; the prohibition of travel and intercourse with strangers; the prohibition of arts, trades, and agriculture; the discouragement of literature; the public meals; the incessant warlike exercises; the doctrine that every citizen was the property of the state, and that parents should not educate their own children.4

 

Adams objected, in other words, to the violence done to human nature, and specifically to the natural human requirement for liberty, in the name of cultivating some “celestial” notion of virtue. Spartans lived “as if fighting and intriguing, and not life and happiness, were the end of man and society.” 5

Private property, fully and consistently institutionalized, is the distinguishing characteristic of the society of individual liberty. Men who have the freedom to possess, use, and dispose of the product of their own labor are free to place their own interests ahead of any notion of the public good and to pursue such earthly values as material well-being, wealth, and luxury. Adams advocated a political philosophy that deals with man as he is, not as he allegedly ought to be. If man is a rational, volitional being, then his government ought to secure his freedom to act according to his own judgment. And if a man judges it to be in his own interest to pursue material comfort, wealth, and luxury, then government ought to secure his freedom to act accordingly. Adams described his Defence as “an attempt to place Government upon the only Philosophy which can ever support it, the real constitution of human nature, not upon some wild Visions of its perfectibility.” 6

Property was central to Adams’ ideas about government. Throughout history, he discovered, republics had been characterized by a continual tension between the propertied and the unpropertied, or between the more and the less propertied. The former would use their wealth to purchase political power at the expense of the latter, and the latter would convert their superior numbers into political power with which to plunder the propertied. Adams, the architect of constitutions, saw the solution in a certain structure of government, a counterbalancing of forces between a lower house of the legislature representing the people and an upper house representing the propertied, with a strong executive to mediate their differences.

Adams was clear that liberty and property are inseparable. He wrote:

 

Res Populi, and the original meaning of the word republic … had more relation to property than liberty. It signified a government, in which the property of the public, or people, and every one of them, was secured and protected by law. This idea, indeed, implies liberty; because property cannot be secure unless the man be at liberty to acquire, use, or part with it, at his discretion, and unless he have his personal liberty of life and limb, motion and rest, for the purpose. It implies, moreover, that the property and liberty of all men, not merely of a majority, should be safe; for the people, or public, comprehends more than a majority, it comprehends all and every individual.7

 

Recognizing that it must be one or the other, liberty or classical “virtue,” Adams chose liberty as the proper end of government. Liberty, in turn, is inseparable from property; Adams was as aware of this as John Locke had been. The American Founders’ commitment to individual liberty is nowhere more clearly expressed than in the Declaration of Independence.

Jefferson

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.8

 

It would be difficult to compose a more concise and eloquent summary of Locke’s political philosophy than this. All the more curious, then, is Jefferson’s substitution of “pursuit of Happiness” for “property” in the familiar trio of rights. If liberty implies, and requires, property, then Jefferson’s commitment to liberty would be problematic if he was not equally committed to securing the rights of property.

Jefferson’s use of “pursuit of Happiness” instead of “property” suggests that he might have meant implicitly to deny to private property the status of an “unalienable” right. Elsewhere he is more explicit. In a letter he wrote in 1813, in which he addressed the question whether inventors have a natural right to exclusive ownership of their inventions, Jefferson discussed the status of property as a natural right. He began by saying that it is debatable (“moot”) “Whether any kind of property is derived from nature at all.” He continued:

 

It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and it is given late in the progress of society.9

 

The last line of this quotation reminds us of Locke’s statement that “For in Governments the Laws regulate the right of property, and the possession of land is determined by positive constitutions.” In a letter he wrote in 1816, Jefferson wrote:

 

[A] right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.10

 

Here Jefferson is clear that private property is grounded upon certain natural needs of man, on the (natural) means he possesses of fulfilling those needs, i.e., his labor, and on the right he thereby acquires to the product of that labor. But the key to understanding his ideas on property is the thought with which he ends the sentence just quoted, that the natural right to the product of one’s labor is somehow conditioned upon one’s not “violating the similar rights of other sensible beings.”

Jefferson is suggesting here that the natural right to property is grounded in and maintained by the productive use and only the productive use of one’s property, just as Locke believed. As Jean Yarbrough has pointed out, Jefferson held the right to labor to be more fundamental than the right of property.11 It is the right to labor that gives rise to the right to the product of one’s labor. The right to labor thus gives rise to the right to occupy a patch of ground somewhere. But the right to that patch of ground exists, as a natural right, only so long as one makes productive use of it. As soon as one vacates the land or otherwise ceases to make productive use of it, any claim one had to the land that was based in natural right ceases as well.

For a man to defend by force land he is not using productively can, for Jefferson, violate the law of nature; it can violate other men’s rights to labor—upon that land. “Whenever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right.” 12 (Jefferson had in mind here the vast, largely unused private estates of the French nobility.) One’s title to lands left “uncultivated,” especially when there are unemployed poor, may be protected under the laws of “stable ownership” within civil society, but not by natural right.

This does not mean that Jefferson denied altogether the natural right status of private property. In a “Prospectus” he wrote later in life recommending the economist DeStrutt de Tracy, Jefferson explicitly referred to a natural right of private property:

 

If the overgrown wealth of an individual be deemed dangerous to the state, the best corrective is the law of equal inheritance to all in equal degree; and the better as this enforces a law of nature, while extra-taxation violates it.13

 

He continues:

 

To take from one, because it is thought that his own industry and that of his father’s has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association—the guarantee to every one of his industry and the fruits acquired by it.14

 

“Extra-taxation” violates the “guarantee” to each man of the freedom to control his own labor and to own the product of that labor, which is the “first principle of association.” We are reminded of Locke’s argument that it would be “too gross an absurdity” for the “Supream Power” to take “from any Man any part of his Property without his own consent,” given that it was to preserve their property that men entered civil society to begin with.15 Jefferson did indeed subscribe to the idea of a natural right of private property, but it encompassed only a part of what we usually consider to be the right of property. It did not include land that one did not occupy or use productively.16

Jefferson considered private property to be the foundation of the whole republican enterprise. The yeoman farmer, largely self-sufficient and beholden to no one, Jefferson saw as the backbone of liberty. The greater the proportion of the population that farmed their own land, the better would be the prospects for long-term liberty in the United States. It was his own desire to expand the supply of land available to future generations of yeoman farmers that lead Jefferson to purchase the Louisiana Territory. It was his belief in the fundamental importance of the yeoman farmer that led him to oppose Hamilton’s plan to accelerate the development of manufacturing in America (through just the kind of property-state alliance that Jefferson had always opposed). Jefferson believed that the employees of large-scale manufacturing concerns do not make virtuous, independent-minded republicans, so he opposed any attempt to stimulate the growth of manufacturing through government intervention.

Jefferson believed that a man has a natural right to occupy land that he uses productively, and a natural right to the product of his labor upon that land. This conception may not accord natural right status to the full bundle of the rights usually associated with “stable ownership,” but it is nonetheless an important part of the foundation on which to erect a polity committed to individual liberty. If all the property devoted to productive use in the United States were rendered completely inviolable to government interference, Americans would enjoy a degree of freedom unknown in the world today. On the other hand, Jefferson’s exclusion of “property” from its proper place with life and liberty in the Declaration of Independence has helped to obscure the fact that the right of private property enjoyed, in the estimation of Jefferson and virtually all of his fellow Founders, a place among the most fundamental rights of man.

The State Bills of Rights

Jefferson once said that there was nothing original in the Declaration of Independence, that he had merely intended to express the “common sense” of the matter. But was Jefferson’s somewhat complicated conception of the natural right of private property indeed the “common sense” of the matter? What was the prevailing view during the Revolutionary period as to the natural status of that right? The bills of rights of many of the state constitutions adopted in the years following the Declaration suggest an answer. Six of these included a reference to the Lockean trio of life, liberty, and property. The 1780 Declaration of the Rights of the Inhabitants of Massachusetts was typical. Article I states:

 

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.17

 

Judging by this and other similar passages in the state bills of rights, many of America’s Revolutionary leaders understood the right of property to be, without qualification, a fundamental, natural right. Jefferson’s more complicated understanding of the “natural” status of the property right was probably not the “common sense” of the matter.

The Constitution

We The People of the United States, in Order to form more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.18

 

The U.S. Constitution is explicit in its commitment to liberty, but it is noteworthy for the absence within it of any mention of natural rights, on the one hand, or of property rights, on the other. The same is true of the U.S. Bill of Rights. We must ask, then, whether the Framers of the Constitution and the authors of the Bill of Rights meant to deny a “higher law” status to the rights of individuals. And we must ask, especially, whether they intended not to render property rights inviolable. Was it their intention that the U.S. Government, subject only to the exceptions spelled out in the Fifth Amendment, and that the state governments, subject only to their own constitutions and bills of rights, should have the authority to abridge or abolish property rights at will? If indeed they did so intend, then it is possible that they did not intend to establish a nation of free individuals in a manner consistent with the principles of John Locke.

The Framers and Natural Rights

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and persuing and obtaining happiness and safety.19

These words from the Virginia Declaration of Rights would have “prefixed” the U.S. Constitution if James Madison had had his way. They would have tied the Constitution unequivocally to the Lockean principles of the Declaration of Independence, and they would have formally endorsed the idea of private property as a fundamental, natural right. But the Framers rejected Madison’s opening, and they chose not explicitly to endorse the idea of natural rights in general nor the idea of a natural right of private property. We must now ask what place, if any, they intended property rights to have in their constitutional scheme.

The Framers and Property Rights

The men who framed the Constitution of the United States were probably unanimous in their belief that the protection of property rights was a fundamental reason for the existence of government. Even though they intentionally chose not to endorse the idea of natural rights, nor to name as the purpose of their frame of government the familiar trio of life, liberty, and property that would have been suggestive of Lockean natural rights, there probably was not one among them who would have disagreed that the securing of property rights was a fundamental purpose of the government they were erecting.

Said Gouverneur Morris:

 

Men don’t unite [to form governments] for life or liberty, they possess both in the savage state in the highest perfection they unite for the protection of property. [sic] 20

 

John Rutledge and Pierce Butler of South Carolina agreed with Morris that the protection of property is the primary purpose of government.21 So did Rufus King of Massachusetts.22 James Madison was, as we have seen, a thorough-going Lockean and an advocate of a natural right of private property. Likewise on both counts James Wilson, another leader of the Convention. Likewise George Mason, John Dickenson, and Elbridge Gerry.23 And William Paterson of New Jersey, on circuit for the U.S. Supreme Court in 1795, would write:

 

[T]he right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man.24

 

Alexander Hamilton, though apparently skeptical about the idea of natural rights, was unequivocal that the protection of property is a fundamental purpose of government. Hugh Williamson encouraged his fellow North Carolinians to ratify the new constitution by noting that its Framers “imagined that we had been securing both liberty and property on a more stable foundation.”25 And William R. Davie of North Carolina, Charles Pinckney of South Carolina, and Abraham Baldwin of Georgia all believed the protection of property rights to be important enough to merit the instituting of an upper house of the federal legislature specifically to represent the interests of men of property.

It has never been a serious question among historians whether the men who framed the Constitution considered the protection of property rights to be a fundamental purpose of government. What has been disputed, due to the Framers’ failure explicitly to endorse property rights in some form or other, is whether they intended to render property rights inviolable in the way, for example, that freedom of speech and press have been rendered (relatively) inviolable in our own day.

The Constitutional Convention

The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such excess by the State legislatures [under the Articles of Confederation], as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people, and destroy the sanctity of private faith. To guard against the continuance of the evil … was one of the important benefits expected from a reform of the government.26

 

The revolution announced by the Declaration of Independence did not end with the signing of the treaty of peace with Britain in 1783. The men who authored the state constitutions and bills of rights of the era showed a correct understanding of the proper ends of government, the securing of men’s rights of life, liberty, and property. But their early attempts at designing the governmental means of achieving those ends were not equal to the task. Among their failings, the governments they designed proved inadequate to secure men’s rights of property. It was, in part, the recognition of this failing that led to the effort to devise a new political architecture for the nation, an effort that eventually would issue in the framing and ratification of the U.S. Constitution.

But if the inadequacy of the state constitutions at securing that right was so important a reason for the framing of the U.S. Constitution, why then is there no blanket protection accorded to property rights in the Preamble or the body of the Constitution, or in the U.S. Bill of Rights? A full understanding of the answer to this question requires that we examine the conditions that gave rise to the effort to replace America’s first frame of national government, the Articles of Confederation, with a new constitution.

When the thirteen colonies declared their independence from Britain, they did so as “one people,” to use the Declaration’s phrase.27 But in 1776 this people did not have a common government. Each of the new states had its own structure of government left over from the colonial days, and most states soon adopted new, republican frames of government. But the only semblance of a common, national government that existed in 1776 was the Continental Congress, to which each state voluntarily sent representatives. The Congress was not a formal government at all, and the states would not have a formal central government until the last of them ratified the Articles of Confederation in 1781.

The government of the Articles was a confederation government, rather than a true national government, with ultimate power residing in each of the separate states, rather than in the central government. Before a decade would pass, Americans’ experience with this form of government would convince enough of them of its inadequacies that they would scrap the Articles in favor of a unique type of hybrid constitution, something more consolidated than a confederation of independent states, but less so than a fully consolidated national government like that of England.

The War for Independence and its aftermath had persuaded many Americans that the loose, confederation form of government was inadequate to the task of directing the national defense against a foreign enemy. In addition, the Americans’ frustration with British efforts after the war to restrict Americans’ foreign trade had led many of them to believe that more centralized and energetic direction than the Articles could afford was needed to secure Americans’ rights to engage in foreign commerce.

A third weakness of the confederation form of government also related to freedom of commerce, in this case, the interstate variety. Certain of the states lacked the port facilities to carry on trade with Europe. North Carolina, for example, though a coastal state, was effectively cut off from the sea by her barrier islands. She had to conduct her foreign trade through Virginia and South Carolina. The latter two states took advantage of North Carolina by levying “imposts” on all goods passing through their states into or out of North Carolina.

Delaware and western New Jersey likewise suffered at the hands of Philadelphia; eastern New Jersey and western Connecticut at the hands of New York; and eastern Connecticut at the hands of Rhode Island and Massachusetts. New York was the worst offender, though she directed most of her attention to foreign trade, especially imports, as opposed to interstate trade. Virginia, on the other hand, was notorious for taxing interstate trade, whether bound for Virginians or just passing through.28 In the minds of many Americans, these “trade wars” pointed to a need for a central superintending authority to establish freer movement of goods among the states, an authority distinctly lacking under the Confederation government.

These three shortcomings of the Confederation government, its ineffectuality at defending against foreign military threats and its inability to address foreign and interstate commercial restrictions, formed, in the minds of men like Alexander Hamilton and others of a national perspective during the 1780s, a compelling reason either to overhaul the Articles of Confederation or to replace them altogether with a more “vigorous” central government armed with the authority to address such problems. But these inadequacies were not, in and of themselves, enough to give rise to a movement to amend or replace the Articles sufficient to carry the effort through to reality. By late 1786, however, a new incentive appeared which tipped the scale and led, eventually, to the Constitutional Convention of 1787.

Britain’s restricting of America’s trade with her helped give rise in the mid-1780s to economic hard times and a wave of bankruptcies throughout the States. This wave gave rise, in turn, to a rash of legislation in the states intended to mitigate the effects of the economic downturn, legislation intended specifically to ease the condition of debtors at the expense of creditors. In 1786, for example, seven states succumbed to debtor pressure and inflated their money supplies with issues of paper.29

Rhode Island, the worst offender, legislated that creditors had to accept its depreciated paper money at face value, and it provided that violations of this statute could be litigated by trial without jury.30 New Jersey tried to force acceptance of its paper by stipulating that if any creditor refused to accept it, payment of the debt in question would be suspended for twelve years.31 Such “stay” or “moratory” laws, suspending or rescheduling the payment of debts, were common.

In 1782 the State of Maryland stayed the payment of all debts until January of 1784. It also stipulated that during this period debtors could use as legal tender land, slaves, or almost any kind of produce.32 Statutes thus authorizing the payment of debts with property instead of money were common. South Carolina became famous in this regard for its “pine barren law,” which required creditors to accept payment in land or other property, though the land proffered was often worthless.33

Massachusetts largely resisted the pressure from debtors to enact such legislation, and the result was Shay’s Rebellion. In the western part of the state, farmers who had been beset by creditors armed themselves and marched on the courts in an effort to halt legal proceedings against themselves. The rash of legislation blatantly infringing private contracts and undermining the security of property rights had already disturbed advocates of liberty and property throughout the country, but the specter of armed rebellion in an effort to bring about further such legislation sent shock waves up and down the land.

The legislative depredations of the Confederation period had their roots, in the estimation of some leaders, in the political architecture of the states. The state governments under the Confederation had weak executive and judicial branches, with the preponderance of power concentrated in the legislatures. And the balance of power within the legislatures themselves tended to reside in the lower houses. Because these lower houses were, by design, the branch most directly answerable to the people at large, they were the department most responsive to the momentary passions of the masses. If the mass of the people in the respective states wanted to use the machinery of government to override the property rights of a minority of the citizenry, there was little in the way of structural checks in the state governments to stop them. The moratory and paper money laws and other legalized looting of the Confederation period were due, said Elbridge Gerry, to “an excess of Democracy.” 34

Liberty, Property, and Democracy

In his famous Federalist No. 10, James Madison addressed the problem of “factions,” or what we today call “special interests,” under popular government. The Founders saw the propensity of “factions” to seek special treatment from government as a dangerous threat to good government, an essential characteristic of which they believed to be equal protection under the law. In terms reminiscent of John Adams, Madison noted that “the most common and durable source of factions has been the various and unequal distribution of property.” 35 He meant that wherever there are a wealthy few and a less wealthy many, each of these “factions” will tend to urge government policies that favor their own short-range interests at the expense of the other group’s. Wealthy industrialists, for example, might favor protective tariffs that restrict competition from foreign manufactured goods, thus causing non-wealthy consumers to have to pay higher prices for domestically produced goods.

Madison and Adams and others among the Founders saw differences in wealth as an unavoidable consequence of individual liberty.

 

The diversity in the faculties of men from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties.36

 

Inevitably, men who are equally free to exercise unequal faculties will accumulate “different degrees and kinds of property;” some men will become wealthy and others will not.

A government committed to preserving men’s equal rights of self-preservation will, inevitably, face and have to defuse the problem of economic factions. At the time he authored his Federalist entrees, Madison was most concerned, because of recent events, about the threat to the minority faction of creditors posed by the majority faction of debtors, a threat exemplified by “[a] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.” 37

All men have an equal right to pursue their self-preservation, but they are distinctly unequal in their native and their cultivated abilities. Says Madison, “the first object of government” is to protect men’s equal rights to pursue their self-preservation by means of their unequal “faculties.” Madison is not saying here that men of different degrees of wealth in fact have different long-range interests. He makes the point explicitly:

 

There is no maxim in my opinion which is more liable to be misapplied, and which therefore more needs elucidation than the current one that the interest of the majority is the political standard of right and wrong. Taking the word “interest” as synonymous with “Ultimate happiness,” in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense, it would be the interest of the majority in every community to despoil & enslave the minority of individuals; and in a federal community to make a similar sacrifice of the minority of the component states. In fact, it is only reestablishing under another name and a more spe[c]ious form, force as the measure of right.38


Madison recognized that a great many men tend to consult only their apparent short-range advantage, and that, therefore, men of modest wealth will often believe it in their interest to take advantage of their superior numbers to expropriate by political means the wealth of a more propertied minority. Madison is clear, first, that such men mistake the true nature of their long-range interest, and, second, that regardless of the size of their political majority, such men are not morally justified in their actions. He argues, in Lockean fashion, that force thus employed is anathema to right. In order to be just, a government must find a way to secure all individuals in the enjoyment of their property, however little or much it might be. An important failing of the Articles of Confederation was that, due to “an excess of Democracy” at the state level, the state governments were unable to secure the property rights of minorities against the depredations of democratic majorities.

The Strategy of the Framers

The four principal shortcomings of the Articles of Confederation that the Framers of the U.S. Constitution set out to remedy were the impotence of the federal government in the face of foreign threats, both military and commercial, the proliferation of state-sponsored obstacles to interstate trade, and the threat to the security of private property posed by the actions of democratically controlled state legislatures. Their solution involved a unique splitting of “sovereignty,” or power, between the state governments and the new central government. Their strategy, in general terms, was to erect a strong central government that would be fiscally independent of and legally superior to the state governments. They then set about to make this new central government sufficiently independent of the people of the states as to render it largely immune to the kinds of democratic pressures that had so compromised the state legislatures under the Articles.

Having thus erected a central government substantially independent of the state governments and insulated from the democratic pressures emanating from the general electorate, the Framers then removed from the state governments and vested in the new central government exclusive authority over certain areas that had been problematic under the Articles. These included national defense, foreign and interstate commerce, and certain matters relating to the security of private property, such as the issuing of money. Finally, the Framers explicitly prohibited to the states—and to the new federal government—certain types of legislation that violated the rights of property and which had proliferated under the Articles.

Article I, Section 8 of the U.S. Constitution authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises.” This clause makes the federal government fiscally independent of the state governments. Article VI states that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the constitution or Laws of any State to the Contrary notwithstanding.” This clause renders enactments of the federal government legally superior to those of the states. Together, these two clauses make the federal government substantially independent of the state governments.

Next the Framers set about to make the new federal government less susceptible to democratic pressures emanating from the people at large than the state legislatures had been under the Confederation. Their first tactic was to balance the power of the department of government most exposed to democratic pressures, the lower house of the federal legislature, with a sufficiently powerful upper house, of different composition, which would be insulated from the democratic pressures affecting the lower house. This last the Framers accomplished by placing the election of members of the upper house at one remove from the people at large—into the hands of the state legislatures, and by electing those members for terms of six years, rather than the two years served by members of the lower house.

As a further check on the power of the federal legislature, and especially its lower house, the Framers devised an office of chief executive, to be elected indirectly like members of the Senate, but by electors chosen as the respective state legislatures should direct. This chief executive would exercise a qualified power to veto the enactments of the federal legislature.

A final check on legislative power would come from the new, independent federal judiciary. To doubly insulate this judiciary from democratic pressures, they would be appointed by the chief executive, subject to approval by the upper house of the federal legislature, and they would serve for life. Whether the Framers intended the federal judiciary to act as a check upon the federal legislature is a matter about which experts disagree. That they intended it to be a check upon the democracy-prone legislatures of the states is beyond dispute.

Having made their new federal government independent of and superior to the governments of the states, and having insulated it from democratic pressures emanating from the people at large, the Framers then transferred from the states to the federal government exclusive control over certain areas of political endeavor. The first of the powers over which the Framers gave the federal government exclusive control was the power to carry on national defense and to conduct America’s foreign relations. This was a logical power to invest in the central government, and it was the Framers’ answer to the first of the problems under the Articles that the Framers had set out to solve.

The next two powers which the Framers transferred from the states to the federal government were the powers to regulate foreign and interstate commerce. To an important extent, the transferring of both of these powers to the federal government was done in the interest of securing individuals’ freedom to acquire and dispose of property. Many of the Framers believed that the United States would never achieve free trade with other nations until it had the power to retaliate in kind against other nations’ trade barriers. Unifying and making exclusive in the federal government the power to regulate the nation’s foreign trade was thus, in the minds of these men, a means of breaking down foreign, especially British, trade barriers.

In the event, this would prove to be a double-edged sword, as effective at erecting American trade barriers as it was at breaking down foreign ones. Americans’ freedom of commerce would have been better served had the Framers simply prohibited any regulation of foreign trade by either the states or the federal government.

On the other hand, the transferring from the states to the federal government of the exclusive power to regulate trade between the states has had incalculably beneficial results. Nearly a hundred years would pass before the federal government would exercise this power to any great extent. And with the states thus prohibited from intervening in this area, Americans would enjoy almost a century during which there was virtually no government intervention in interstate trade.

The transferring of these two powers to the federal government was the Framers’ answer to the second and third of the problems blamed on the Articles of Confederation, the problems of artificial obstacles to foreign trade and of state-sponsored obstacles to interstate trade.

The last of the major problems the Framers intended to address, the problem which most immediately gave rise to the Constitutional Convention, was the tendency of the state legislatures to pass enactments violative of the rights of property, enactments such as moratory and legal tender laws. One means that the Framers employed to solve this problem was, as they did in the cases of foreign and domestic trade, to transfer certain powers from the states to the federal government. In this case, the powers in question amounted to control over the issuing of money. The Constitution prohibits the states from coining money, from issuing paper money (“Bills of Credit”), and from legislating that anything other than gold or silver should be accepted as legal tender.

Sound money is necessary for the carrying on of trade on any level above primitive barter. It is indispensable in a system with the highly developed division of labor that characterizes capitalism. In the interest of sound money, the Framers deprived the democracy-prone states of all control over money and vested it exclusively in the now less-democratic federal government. The Framers’ concern to provide for sound money is an unmistakable indication of their intention to establish a frame of government capable of maintaining an economy based on private property.

The Three Powers of Government

As we have seen, the Framers’ primary strategy for securing individual liberty, and especially the rights of property, against government infringement consisted of the structure of the government they devised. Part of that structure, the U.S. Congress, clearly resembles the English Houses of Parliament. The ruling principle of the English system is the supremacy of the legislative branch; Parliament is virtually unchecked in its power, save for its ultimate need to answer to the voters at the ballot box. The American Framers intended for the U.S. Congress to be the ultimate power in their system of government as well, but they were determined to place limits on the power of Congress that Parliament was not subjected to. The qualified veto power of the American president is one such check.

The English invented limited government. The “Rights of Englishmen,” such as the habeas corpus and trial by jury, placed limits on what the government could do in enforcing the law against transgressors. But these rights were not judicially enforceable against acts of Parliament; had Parliament decided to abolish, say, the right to a jury trial, no British court could have declared Parliament’s action unconstitutional and therefore void. The Americans, in this respect, gave new meaning to the term “limited government.”

The first step toward improving on the English form of limited government was, of course, the idea of a written constitution as the fundamental law of the land. The next step was to render the written constitution enforceable by courts as against the acts of legislatures. Whether the Famers of the U.S. Constitution intended for its clauses to be court-enforceable as against Congress itself is problematic. But there is no doubt that they intended those clauses to carry, as against Congress, at least the weight that the traditional “Rights of Englishmen” carried under the unwritten English Constitution. There also is no doubt that the Framers intended the provisions of the U.S. Constitution to be enforceable by federal courts against acts of the state legislatures. In this scheme, certain clauses of the Constitution are, therefore, crucial to the securing of the rights of property, especially against the kind of the legalized looting by the state legislatures that had characterized the Confederation period.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This one sentence bars the federal government entirely from regulating the sphere of religion. It ensures that that sphere will be one entirely of private, voluntary relations. It does not bar government from performing its proper function within that sphere; if a sect were to forcibly abduct new recruits, government would be free to intervene, liberate the abductees, and retaliate against the abductors. This provision of the First Amendment bars government from initiating the use of force against individuals in the religious sphere. It is a crucially important limitation upon the power of government, and it is a perfect example of how to limit that power within a specific sphere of human endeavor.

But the governments of the United States, federal, state, and local, have never been fully and properly limited. The First Amendment effectively (more or less) prohibits those governments from interfering with men’s rights to think as they choose and to communicate their thoughts freely. But the Constitution does not now, and never has, fully and effectively prohibited governments from interfering with men’s rights to act as they see fit by securing men’s rights of property. The simplest and most direct way to achieve this would be a simple prohibition: “Neither Congress nor the states shall make any law respecting private property.”

But there are two factors that make the securing of property rights against government a much more complicated matter than the securing of religious freedom is. First, government has a role in adjudicating disputes in the realm of property and contract rights that it does not have in the realm of religion. The second factor is the existence of three “powers” of government that touch upon property rights. These are the powers of taxation, eminent domain, and police. All three are a legacy of pre-Lockean conceptions of government.

The power to tax is the power to expropriate the wealth of citizens for the purpose of paying the expenses of the government. The premise underlying the idea of forcible taxation is that, because every individual enjoys the benefits of government, each may be compelled to contribute to paying the cost of those benefits. The power of eminent domain is the power of government to expropriate the property, usually land, of specific individuals. Governments expropriate land for public buildings, military installations, dams, bridges, and roadways, among other things. The premise behind forcible expropriation from specific individuals is that the need of the public takes precedence over the needs or wants of individuals.

The third “power” of government that touches property is the police power. Whereas the taxing and eminent domain powers are relatively well-defined, the police power is ill-defined, amorphous, and, today, nearly all-encompassing. One way to define it, as it touches property rights, is as a power to do almost anything except what the taxing and eminent domain powers do. Traditionally, the police power existed to enact statutes for the public health, safety, morals, and welfare. It derives, in part, from the English common law of nuisance, under which the government could prohibit certain activities, such as operating a tannery in a residential district, which had the potential to violate the rights of individuals by such means as sending invasive odors or fumes or noise onto their property.

In addition to guarding health, safety, and morals, English law also regulated the production and distribution of wealth. Today in the United States both fields of regulation, health, safety, and morals, on the one hand, and the production and distribution of wealth, on the other, are subsumed under the police power. But as recently as 1904, according to Ernst Freund, the applicability of the police power to the latter sphere was still “debatable.” Wrote Freund:

 

Broadly speaking, there are therefore three spheres of activities, conditions and interests which are to be considered with reference to the police power; a conceded sphere affecting safety, order and morals, covered by an ever-increasing amount of restrictive legislation; a debatable sphere, that of the proper production and distribution of wealth, in which legislation is still in an experimental stage, and an exempt sphere, that of moral, intellectual and political movements, in which our institutions proclaim the principle of individual liberty.39

 

Today the first and second of these spheres are very much within the purview of the police power. It is difficult to grasp the present range of this power without enumerating at least a few of the kinds of regulation included in it: zoning ordinances, building codes, licensing and permit laws, public health regulations, vice laws, traffic laws, local and state labor laws, local and state minimum wage laws, anti-noise ordinances, anti-pollution laws and regulations of all sorts, a wide range of laws and regulations pertaining to wildlife, local and state statutes regulating the sale of alcohol and tobacco, laws regulating the sale and use of firearms, fire regulations, seatbelt and bicycle helmet laws, laws regulating food processing, and local and state laws requiring that commercial enterprises make physical accommodations for the disabled.

Whereas taxation and eminent domain are powers to expropriate property entirely, the police power does not do this. What the police power takes from individuals is not property, strictly speaking, but liberty. It is the restricting of individuals’ liberty to use their property (and sometimes their liberty to dispose of it) that the police power affects.

One interpretation of the meaning of the term “police power” (there are many) excludes from its purview any concern with actions that unequivocally constitute violations of individuals’ rights. Under this interpretation, for example, murder, rape, and robbery are not police power matters. Wrote Freund in The Police Power:

 

The peculiar province of the criminal law is the punishment of acts intrinsically vicious, evil, and condemned by social sentiment; the province of the police power is the enforcement of merely conventional standards, so that in the absence of legislative action, there would be no possible offense.40

 

Freund’s point is that police power regulations, such as an ordinance prohibiting the sale of alcoholic beverages on Sundays, prohibit actions that do not necessarily constitute violations of any specific individual’s rights. Even at their best, police power regulations grounded in the common law of nuisance prohibit actions that would constitute violations of the rights of individuals only if those individuals objected to the invasion of their property. Foul odors from a tannery, for example, constitute trespass-like violations only if the owner of property invaded by the odors objects to the invasion of his property.41

All three of these powers, taxation, eminent domain, and police, are in essence powers for government to commence the use of force against individuals who have not necessarily violated anyone’s rights. (Recall Locke’s—correct—argument that the powers possessed by government are only the powers that the individuals who compose a polity would possess if there were no government. While each individual in the state of nature is morally entitled to use force to defend himself and to retaliate against those who initiate the use of force against him, no one is morally entitled to tax his neighbors, to “take” their land for the community’s use, or to punish his neighbors for acts that do not constitute invasions of his person or his property.)

The existence of these powers authorizing government to violate the property rights of persons who themselves have not violated the rights of any specific individuals makes the task of securing those rights against government infringement vastly more difficult than the task of securing freedom of religion or speech, which are not subject to such powers. But the need to maintain these three powers has been an unquestioned assumption of Western political theory. In a polity which admits these powers, as all do, the securing of the rights of property is, of necessity, a matter of keeping their exercise within strict limits.

All three powers were indeed limited, in one way or another, under the Constitution as the Framers intended it. Section 9 of Article I limits the federal taxing power by prohibiting “Capitation, or other direct, Tax[es] unless in proportion to the Census of Enumeration.”42 This had the effect of prohibiting the imposition of an income tax until the passage of the Sixteenth Amendment in 1913. Article I, Section 8 includes the clause, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and General Welfare of the United States.” This clause can be, and has been, interpreted to limit the purposes for which Congress may tax.43 Indeed, a requirement that federal taxes be used only for the general welfare would clearly prohibit the use of tax money to provide transfer payments to private individuals, as the modern welfare state does. But this limitation is a dead letter today. As to the taxing powers of the individual states, neither the Constitution nor the Bill of Rights limits these in any way.

The Framers’ intentions as to the limiting of the other two powers, eminent domain and police, require more effort to discern. There is the clause in the Fifth Amendment which states “nor shall private property be taken for public use, without just compensation.” This limitation of the federal government’s power of eminent domain is clear and unmistakable. But it is not, of course, the work of the Framers of the original Constitution, who had not intended to include a bill of rights. This does not mean, however, that the Framers intended this power to be altogether unlimited, for, according to William Stoebuck, the paying of compensation for eminent domain takings was already standard practice in the United States in 1789. Says Stoebuck, the paying of compensation was standard procedure in England at the time of the Revolution, and it had also been the rule in the American colonies, as well. (The formalizing of the “public use” limitation was an American innovation.)44

Two of the state bills of rights contained compensation clauses before the adoption of the federal Bill of Rights. And, as explicit written limitations in constitutions and bills of rights eventually became indispensable to the defense of individual rights in the early decades of the nineteenth century, every state constitution but one would come to include a compensation clause. The one state that never adopted such a clause, North Carolina, has always paid compensation as a matter of common law. So the Framers would have had reason to believe that the federal government’s power of eminent domain would indeed be limited, even though they did not themselves explicitly limit it in the Constitution. (We can interpret the inclusion of the “takings” clause in the Fifth Amendment by the First Congress as an effort to solidify the position of this limitation by formally giving it constitutional status.)45

Ex Post Facto

As for the third of the “three powers,” The Framers did include an explicit clause in the body of the Constitution which, had it been interpreted as intended, could have become a powerful limitation on the police-regulatory powers of the states. (The federal government does not possess police powers, per se, although the Commerce Clause has been interpreted—improperly—to authorize the exercise of vast police-like powers by the federal government.) Indeed, so powerful was the limiting potential of this clause that it contributed to the clause’s evisceration as a limitation on legislative power the very first time the clause was used in court.

The clause in question reads, “No state shall … pass any … ex post facto Law.” 46 (A similar clause, Article I, Section 9, limits Congress in the same way.) An “ex post facto” law is a law passed after the fact, a law which renders a person liable for an act that was legal at the time it was committed. It was common to interpret “ex post facto law” during the constitutional period to include laws which, after the fact, attached to some act which had been legal when it was committed what amounted to a penalty, even though the intent of the act was not to penalize. Such, for example, was Rhode Island’s legal tender act of 1786. It required creditors to accept as payment for debts—contracted before the passage of the act—paper money of lower value than the money they had lent out. William Crosskey provides evidence that the term “ex post facto,” as used in the Constitution, was indeed understood to apply to such legislation.47

There is evidence that at least some types of ex post facto laws were prohibited under the common law. Two members of the Constitutional Convention suggested as much in their objections to including the clause in the Constitution. Oliver Ellsworth, a future Chief Justice of the U.S. Supreme Court, said, “there was no lawyer, no civilian who would say that ex post facto laws were not void of themselves.” James Wilson, a future Associate Justice of the same court, argued that inclusion of the clause would “bring reflections on the Constitution—and proclaim that we are ignorant of the first principles of Legislation.” 48

The 1792 Virginia Supreme Court case of Turner v. Turner’s Executrix, among others Crosskey cites, also supports the contention that at least some types of ex post facto laws would have been prohibited regardless of whether there had been a clause to that effect inserted into the Constitution.49 The Framers’ explicit prohibition of such enactments by both the federal and the state legislatures suggests, therefore, that they considered the passing of ex post facto laws to be a serious problem that they were determined to bring to an end.

But in the Federal Convention, George Mason had raised an objection to including the clause in the Constitution which eventually would prove decisive for the effectiveness of the clause itself as a limitation on the power of legislatures to infringe property rights. “There never was nor can be a legislature but must and will make [ex post facto] laws, when necessity and the public safety require them.” 50 Mason worried that the normal functioning of government required the passing of at least some ex post facto statutes, and that these inevitable violations of the Constitution’s ex post facto clauses would provide a precedent for the eventual violation of other clauses. Mason proved prescient. The very first time a suit came before the U.S. Supreme Court on ex post facto grounds, in the famous case of Calder v. Bull, the Court interpreted the ex post facto prohibition to apply only to legislative enactments that would render a previous act criminal, and not to civil enactments such as would merely deprive an individual of legally acquired property rights.51

The evidence suggests that the Court’s interpretation of ex post facto was incorrect, and that the clause should indeed have applied to legislative enactments that “punished” innocent people by dispossessing them of legally acquired property.52 Thirty-one years after the Calder decision, for example, Justice William Johnson came to the question afresh, conducted an exhaustive review of the Court’s reasoning in the Calder case, and concluded that their ruling was incorrect. Wrote Justice Johnson:

 

This court has had more than once to toil up hill in order to bring within the restriction of the states to pass laws violating the obligation of contracts, the most obvious cases to which the Constitution was intended to extend its protection; a difficulty which it is obvious might often be avoided by giving to the phrase ex post facto its original and natural application. It is then due to the venerable men whose opinions I am combating, to believe that had this and many other similar cases which may occur and will occur, been presented to their minds, they would have seen that in civil cases, the restriction not to pass ex post facto laws could not be limited to criminal statutes, without restricting the protection of the constitution to bounds that would import a positive absurdity.53

 

Crosskey argues that the reasons behind the Court’s evisceration of the ex post facto clause in Calder v. Bull were political. But the opinion of James Iredell in that case suggests another motive at work, the one broached by George Mason in the Constitutional Convention. Wrote Iredell:

 

The policy, the reason and humanity, of the [ex post facto] prohibition, do not, I repeat, extend to civil cases that merely affect the private property of citizens. Some of the most necessary and important acts of Legislation are, on the contrary, founded upon the principle, that private rights must yield to public exigencies. Highways are run through private grounds. Fortifications, Lighthouses, and other public edifices, are necessarily sometimes built upon the soil owned by individuals. In such, and similar cases, if the owners should refuse voluntarily to accommodate the public, they must be constrained, as far as the public necessities require; and justice is done, by allowing them a reasonable equivalent. Without the possession of this power the operations of Government would often be obstructed, and society itself would be endangered. It is not sufficient to urge, that the power may be abused, for, such is the nature of all power,—such is the tendency of every human institution: and, it might fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings to the pound.54


Iredell implies that to admit a civil application of ex post facto would be, in effect, to prohibit all legislation detrimentally affecting property rights. He suggests that such an interpretation would even threaten to extinguish the power of eminent domain. More broadly, it would have threatened the existence of all of the government’s powers to override “private rights” for the sake of “public exigencies.”

Carried to a certain level, the logic of ex post facto could have disallowed all legislative enactments that caused a diminution in the value of property, such as a zoning ordinance that prohibited the commercial use of a parcel of land especially suited to such use. It could have disallowed any regulation that required positive expenditures by property owners, such as a statute requiring the upgrading of buildings to accommodate the disabled, or a statute requiring the installation of certain safety features. Interpreted even more broadly, ex post facto could have disallowed any statute that deprived an individual of any right that had been legal when the act was passed. Followed to its logical conclusion, a civil application of the ex post facto prohibition could have meant the virtual abolition of the police power altogether. This was apparent to Justice Iredell, and it figured in his decision to eviscerate the clause by restricting its application to criminal matters.

The problem with the ex post facto limitation was that, in a polity committed to the proposition “that private rights must yield to public exigencies,” it was too powerful a defense of those rights. Iredell went on to say in his Calder opinion that “We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutary confidence.”55 He held, in effect, that it was not possible to limit the government’s police power in any way that would be consistent with its continued existence as a viable power of government. In the next section we shall encounter a jurist who did devise a way to limit the police power in a manner “consistent with its use.” But first a final word on Iredell.

If one wishes to protect property rights from legislative infringement while, at the same time, admitting the validity of government “powers” to override those rights, then one must place well-defined limits on those powers, such as the Fifth Amendment requirement that compensation be paid for takings and that those takings be limited to public purposes. To admit government powers such as taxation and police without placing strict limitations on them is virtually to abolish the inviolabity of the rights of property. It is to render property rights merely statutory in nature, subject to the whims of the next legislature.

The question of the inviolablity of property rights has never been settled in the United States but has been the subject of debate from the beginning. Iredell was not only comfortable with the idea of an unlimited power of taxation, he used the absence of such limitation to support his argument for making other government powers, especially the police power, unlimited as well. His 1798 opinion in Calder v. Bull thus represents an early argument against rendering property rights constitutionally inviolable. He held that only those rights explicitly enumerated in the Constitution or the Bill of Rights should be judicially enforceable. But the Framers of the Constitution and the authors of the Bill of Rights had never intended their lists of rights to be exhaustive, and the Ninth Amendment attests to this. (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Unenumerated rights are every bit as valid as enumerated ones. If the courts are to enforce the latter, then logic requires that they enforce the former as well. Property rights are, far and away, the most important of the “unenumerated” rights.

Kent

Eminent domain is the power of government to seize full title to private property. When the Framers met at Philadelphia in 1787, compensation for eminent domain takings was already established practice in England and America. The First Congress gave the compensation requirement constitutional status by including it in the Fifth Amendment of the Bill of Rights. Subsequently, in the early decades of the nineteenth century, all of the states but one inserted a compensation requirement into their own constitutions. Throughout U.S. history, governments at all levels have more or less consistently fulfilled the requirement that they compensate property owners for eminent domain takings, at least as far as outright takings of full title to property are concerned. To this extent, this requirement has proved to be the model of how to protect property rights against a “power” of government.

There is another kind of “taking,” one that leaves the owner of private property in full physical possession of it but which damages the property or diminishes its value in some way. An example, common in the 1830s, would be a legislative authorization for a private party to erect a dam that caused his neighbors’ farmland to be flooded. The owner of such permanently flooded land was in no way deprived of title to his property, but its utility, and value, were virtually destroyed. Such “partial” takings are effected not by the power of eminent domain but by that of police, though their similarity to eminent domain takings is manifest. The U.S. Supreme Court did not recognize the need to compensate such takings until 1871.56 Yet this type of partial taking might well have been prohibited altogether had Calder v. Bull not limited the reach of the ex post facto clause. But we have seen why ex post facto was rejected as a limitation on legislatures’ power to effect such partial takings. An alternative approach to limiting legislatures’ power to effect such takings would have been to require that they be compensated. This was the approach championed by New York State Chancellor, James Kent

In 1823 James Kent began publishing his Commentaries, a series of law lectures delivered at Columbia University. These were destined to exert a great influence on the development of American Law. Kent was an eloquent advocate of the idea of property as a natural right.57 Although he held that “private interests must be made subservient to the general interest of the community,” he was, in the early decades of the Republic, the nation’s most systematic champion of placing strict constitutional limitations on governments’ powers of taxation, eminent domain, and police.58 (That “private interests must be made subservient to the general interest of the community” flatly contradicts the logic of Lockean individual rights. But this premise underlies the existence of the three powers of government, and every effort to make property rights secure from the Revolution onward would have to contend with it, as Kent does here.)

As to the power of “regulation,” as he referred to the states’ police powers, Kent would have limited this largely to the existing common law of nuisance.59 “Unwholesome trades, slaughter houses, operations offensive to the senses, the deposit of gunpowder, the application of steam-power to propel carts, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population.”60 To restrict the police power to nuisance-abatement would, in itself, have proven a hugely important limitation on that power. Kent goes on to suggest that if a legislature exceeded this limitation “to the destruction of existing property values,” then it should be required to compensate the owners, even though the “power” involved was not that of eminent domain but of police.61 Said Kent, “If A. be the owner of a mill, and the legislature authorizes a diversion of the watercourse which supplies it, whereby the mill is injured, is that not a consequential damage to be paid for? The solid principle is too deeply rooted in law and justice to be shaken.” 62

The U.S. Supreme Court would adopt Kent’s principle insofar as physical invasions of property were concerned in the 1871 case of Pumpelly v. Green Bay Co.63 The Court would then extend the requirement for compensation to non-invasive “damages” consequent to police regulations in the 1922 case of Pennsylvania Coal Co. v. Mahon.64 Since 1922, courts have adhered to Mahon only unevenly, although two recent cases hold promise of a more consistent application of the principle enunciated in Mahon that compensation may be required when police regulations go “too far” in diminishing an owner’s rights in a property.65

Kent’s proposed limitation on the taxing power is also worth noting here.

 

Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citizens, but by their representatives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.66

 

Kent fundamentally opposed the use of the taxing power to redistribute wealth in the interest of “equality.”

The Doctrine of Vested Rights

The ideal outcome of Kent’s efforts to limit the police power would have been the inclusion of explicit clauses in the federal and state constitutions limiting that power to enforcing the common law of nuisance and requiring compensation for all regulations that went beyond nuisance abatement and caused a “taking” by diminishing rights of ownership. But, although Kent’s ideas on compensation for some types of “partial” takings would find their way into constitutional law, his idea of limiting the police power to nuisance abatement ran head-on into a counter movement that I shall describe later in this chapter. Meanwhile, though, the need for some sort of limitation on legislatures’ regulatory powers had been apparent even as Calder v. Bull was eliminating the potential of the ex post facto clause as such a limitation. And by the time that Kent began publishing his Commentaries, there was already developing an alternative limitation.

With the Calder v. Bull decision, the police power was left virtually unlimited. This was not lost on Justice Samuel Chase, who dissented in Calder:

 

I cannot subscribe to the omnipotence of a state legislature, or that it is absolute or without control, although its authority should not be expressly restrained by the constitutional or fundamental law of the state.… The nature and ends of legislative power limit the exercise of it.… There are acts which the federal or state legislatures cannot do without exceeding their authority.… An Act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority.… A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own case; or a law that takes property from A and gives it to B; it is against all reason and justice for a people to entrust a legislature with such powers; and therefore it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation; and the general principles of our law and reason forbid them.67

 

Chase argues here that legislatures do not have the power to infringe the legally acquired rights of individuals. He implies that courts ought to void enactments that infringe such rights, and he would base the courts’ authority to do so on “the nature and ends of the legislative power,” on “the great principles of the social compact,” on “reason and justice,” and on “the general principles of law and reason.” He argues, in other words, for judicial limitation of legislatures’ powers on a basis other than the explicit limitations contained in written constitutions. Edward S. Corwin interprets Chase’s dictum as a call to the state legislatures to fill the void left by the evisceration of the ex post facto clause. Corwin reports that in the early decades of the nineteenth century the state courts responded with a flurry of decisions voiding legislative enactments infringing legally vested property rights, and often citing fundamental, extra-constitutional principles, as opposed to explicit constitutional clauses, as a basis for their decisions.” 68

This limiting of legislatures’ powers began with the state courts’ disallowing incursions by the state legislatures into matters essentially judicial in nature. Says Corwin,

 

Thanks to notions inherited from Colonial days, which were confirmed by the prevalent analogy between the State legislatures and the British Parliament, these bodies [the state legislatures] were prone during the early years of our constitutional history, and some of them for many years afterward, to all sorts of “special legislation” so called; enactments for revising or setting aside court decisions, for suspending the general law for the benefit of named individuals, for interpreting the law for particular cases, and even for deciding cases.69

 

Calder v. Bull, for example, had involved an act by the Connecticut Legislature overturning the decision of a probate court. Corwin says that following the Calder decision, the state courts actively set out to bring an end to the state legislatures’ interfering in judicial matters, especially in cases involving property rights, and that the courts often cited such fundamental, extra-constitutional principles as Chase had mentioned in his dictum to justify their actions.70

According to Corwin, these early efforts by the state courts marked the beginning of a long-lived judicial doctrine aimed at protecting property rights from legislative interference. This body of judicial ideas Corwin christened the Doctrine of Vested Rights, which he termed “the most prolific single source of constitutional limitations of any concept of American constitutional law.” He defines the doctrine as the idea that “the effect of legislation on existing property rights was a primary test of its validity; for if these were essentially impaired then some clear constitutional justification must be found for the legislation or it must succumb to judicial condemnation.”71 In other words, the courts’ Doctrine of Vested Rights placed the burden on the government to justify, by strict constitutional standards, its own enactments any time they interfered with individuals’ rights of ownership. Or, to put it differently, freedom to possess, use, and dispose of one’s property would be the rule, and government infringement of that freedom would be the exception. The Doctrine of Vested Rights came into being around the beginning of the nineteenth century, and it continued as an active force in American jurisprudence into the New Deal.

The Contract Clause

The Doctrine of Vested Rights originated in the state courts and was grounded largely in general principles of reason, justice, and the separation of powers, as opposed to explicit clauses of the state constitutions and bills of rights. It eventually found its way into federal jurisprudence, this by way of a specific clause in the U.S. Constitution. During the Federal Convention, several of the Framers had argued, anticipating the Calder v. Bull decision, that ex post facto did not apply to civil matters, such as paper money laws, but only to criminal matters. Benjamin Fletcher Wright has argued that it was precisely in case ex post facto were ever held to apply only to criminal matters that the Framers included the Contracts Clause in the Constitution.72 This clause prohibits the states from “impairing the Obligation of Contracts,” and its potential application to the notorious legal tender laws of the Confederation period is obvious. The Contract Clause would become, in the early decades of the nineteenth century, an important limitation on the ability of the state legislatures to infringe property rights.

The primary moving force behind the judicial use of the Contract Clause to protect property rights was John Marshall, Chief Justice of the U.S. Supreme Court from 1801 to 1835. Marshall used the clause to block the Georgia Legislature from rescinding grants of land it had made to private individuals; he used it to block the New Hampshire Legislature from altering a corporate charter it had issued to Dartmouth College; and he used it to block the New York Legislature from aiding debtors at the expense of creditors through a retroactive bankruptcy law. The protection of property rights became, much through Marshall’s efforts, a central concern of the federal courts, a development that would have occurred much earlier had the Calder court not eviscerated the ex post facto clause. More than any other individual, Marshall gave effect to the Framers’ intention that the federal government act as a check upon the power of the state legislatures to infringe the property rights of individuals.

Another instrument that Marshall made use of in the interest of economic freedom was the clause in Article I, Section 8 of the constitution, which states that “The Congress shall have power … To regulate Commerce … among the several States.” In the famous case of Gibbons v. Ogden Marshall, arguing that the clause meant that only Congress could regulate interstate commerce, used it to invalidate Robert Livingston’s steamboat monopoly, which had been authorized and enforced by the state of New York. “The right of intercourse between State and State … derives its source from those laws whose authority is acknowledged by civilized man throughout the world.… The constitution found it an existing right, and gave to Congress the power to regulate it.” 73 In this instance Marshall used the commerce clause to abolish state-sponsored restrictions on freedom of commerce.74 Marshall’s idea of Congress’s “promoting” commerce was thus limited to removing regulatory barriers to commerce, and he did not condone such positive measures as federal funding of “internal improvements” such as roads and canals.

It is interesting to compare Marshall’s idea of “federalism” with that of Alexander Hamilton. Hamilton saw an invigorated federal government as a means to effecting certain positive goods, such as the transforming of the United States into an industrial power. Marshall, on the other hand, would limit the federal government’s role in economic matters largely to effecting the negative good of preventing state interference with individuals’ exercising of their rights, as he had done in striking down New York’s state-sponsored steamboat monopoly. Where Hamilton favored a kind of alliance of commerce and government, Marshall advocated more of a separation of commerce and government. Marshall’s conception was much more in line with that of the Lockeans among the Founders than was Hamilton’s.75

Like Locke, Marshall believed that the right of private property rests on a foundation of “higher law.” In the case of Fletcher v. Peck, in which the Supreme Court used the contract clause to void the Georgia Legislature’s attempt to rescind grants of land it had authorized, Marshall identified the “rules of property” with “certain great principles of justice.” He continued, “If any [limits to the legislative power] be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?”76

Marshall subscribed to Locke’s idea that the right of private property originates in labor.

 

That [the slave trade] is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission.77

 

But Marshall goes Locke one better—by according natural right status to contracts as well. In Ogden v. Saunders he argued that the right of contract “results from the right which every man retains to acquire property, to dispose of that property according to his own judgment, and to pledge himself for a future act. These rights are not given by society, but are brought into it.” 78

The Bill of Rights

This concludes the discussion of the place of property rights in the Constitution itself. As for their place in the federal Bill of Rights, little need be said. The authors of this document did not include any mention of such abstract, general rights as life, liberty—or property. Instead, they focused their attention on such specific rights as freedom of speech, press, and religion; on certain specific limitations relating to the government’s exercising of its proper powers of law enforcement, such as the prohibition against unreasonable search and seizure and the requirement for jury trial; and on a specific limitation of one of the three “powers” of government touching property rights, the power of eminent domain.

This last, of course, is the Fifth Amendment’s requirement for compensation for “takings,” and its limiting of such takings to “public purposes.” As I have said, compensation was already standard practice in the states at the time of the ratification, and the inclusion of the takings clause in the Fifth Amendment is best understood as intended to solidify the status of this practice by making it a constitutional requirement.79 The second of the three powers, the police power, was already limited under the Constitution’s ex post facto clause (and the Contracts Clause), so it did not require limitation in the Bill of Rights. Likewise, the third of the three powers, taxation, was explicitly limited by the prohibition against income (“capitation”) and other “direct” taxes. No one had yet conceived of any additional way to limit the taxing power. The Constitution and the Bill of Rights combined, therefore, contain all that was possible, in the context of the time, to complete the constitutional limitation of the three “powers” of government, and, thereby, to secure the rights of private property against government infringement.

Before drawing any further conclusions as to the place of property rights in the Constitution, I want to trace the development of judicial protection of property rights throughout the nineteenth century, because that development has a bearing on the conclusions to be drawn.

Democracy and the Police Power

At the time of the Constitutional Convention, property qualifications for voting and office-holding were common throughout the United States. The Framers chose not to alter these arrangements, deciding that the qualifications for voting for federal representatives would be whatever pertained in the respective states. But from the ratification onward, there was a steady lowering of these qualifications, affording an ever-larger proportion of the citizenry the opportunity to participate in voting and political office-holding at the state and federal levels. Samuel Eliot Morison says that with the defeat of the (Jeffersonian democratic) Republicans by John Quincy Adams in 1824, elements within the Republican Party expressly set about removing the few remaining barriers to voting by white males in the hope that an expanded electorate would tilt the balance both toward the Republican Party and away from federal dominance.80 The result was a resounding victory for Andrew Jackson in 1828, and the beginning of a period of dominance by democratic elements within the states that would last almost unbroken until the Civil War.

One result of the newfound power of the democratic Republicans within the states was an increased demand for legislative activism, often at the expense of property rights. As Corwin notes, demands arose for free schools, and for “internal improvements,” such as roads, canals, and railroads, all financed or aided by state legislative action.81 During this period, governments and private concerns made liberal use of the power of eminent domain for such “public” endeavors as railroads and milldams. Also, notes Corwin, the era saw the rise of a number of moral crusades, including women’s rights, abolitionism, and prohibitionism, all of which, to one extent or another, threatened vested property rights. Amid this growing demand for the use of legislative power, democratic elements within the states, reinforced by the growing “states’ rights” movement, opposed the intervention of the federal courts to protect the property rights of individuals against the state legislatures.

Under the influence of Jackson-appointed Supreme Court justices, especially Chief Justice Roger Taney, James Kent’s strictly limited “power of regulation” became the vastly expanded “Police Power,” a power that gave the state legislatures complete territorial sovereignty within their own borders.82 Said Taney in the famous Charles River Bridge case:

 

The object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed, that the government intended to diminish its powers of accomplishing the end for which it was created.… While the rights of property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation.83


Under this formulation, the purpose of government becomes the achieving of a positive, “to promote the happiness and prosperity of the community” by positive intervention in its economic life, as opposed to the essentially negative purpose of punishing the use of force and fraud in order to enable individuals to pursue their own happiness and prosperity privately. As Corwin points out, this new conception of the police power signified:

 

…that legislation affecting property rights detrimentally must nevertheless be judged from the point of view that the legislature intended thereby to promote the public interest, not to punish the holders of the said vested rights; and that in the absence of specific constitutional provision to the contrary the public interest was ordinarily entitled to prevail against such vested rights.84


In the passage above quoted from Taney’s Charles River Bridge opinion, there is also the novel conception of collective “rights,” which stand in contrast to the Lockean conception of individual rights. And we have the corollary of such a conception, the idea that, as a general rule, individual rights must give way to “collective rights,” except in those instances in which explicit constitutional clauses protect individual rights, as in the case of the “obligation of contracts.” Taney’s conception of the police power stands in sharp contrast to the Doctrine of Vested Rights, which held that the integrity of individual rights should be the rule, and their legislative impairment in the name of the public good the exception. The one represented largely unfettered legislative power, the other strictly limited legislative power. Taney makes clear, says Corwin, that the only limitation that the federal courts could enforce against the police powers of the state legislatures was contained in the Contract Clause. There would be no more limiting of that power on the basis of the social contract, natural rights, or any other of the unwritten principles of fundamental law upon which the state courts had erected the Doctrine of Vested Rights.

James Iredell had argued back at the time of Calder v. Bull that the only rights that courts could protect against legislatures are those that are explicitly enumerated in constitutions or bills of rights, much as the Fifth Amendment protects the right to compensation for eminent domain takings by the federal government. With his Charles River Bridge decision, Taney gave formal recognition to Iredell’s viewpoint. But at the time that the First Congress was drawing up the Bill of Rights, it was not yet clear what role the explicit clauses of that document would play in securing men’s rights. Specifically, it was not yet clear that the Supreme Court would eventually take it upon themselves to enforce the clauses of the Bill of Rights against Congress itself. Had this been clear, then the authors of the Bill of Rights might well have attempted a more exhaustive enumeration of the rights which the Supreme Court could thus protect.

But the authors of the Bill of Rights did not attempt such an exhaustive enumeration of individuals’ rights, and they explicitly acknowledged this fact in the Ninth Amendment. When the Supreme Court later did assume the responsibility of securing individuals’ rights as against Congressional enactments, it was important that the Court protect all the rights which individuals possessed, not just those enumerated in the Bill of Rights. The Doctrine of Vested Rights thus represented a constitutionally justified effort to afford judicial protection to certain fundamental, though unenumerated, rights, especially property rights.

Popular Sovereignty vs. Vested Rights

In its initial form, resting upon extra-constitutional, general principles, the Doctrine of Vested Rights reached the peak of its influence about 1830, says Corwin. But with the rise of Jacksonian democracy, a new, competing set of ideas dictated that the doctrine assume a new form. Corwin refers to this new set of ideas as the Doctrine of Popular Sovereignty. John Marshall had written of this phenomenon earlier. The Doctrine of Popular Sovereignty was the idea that

 

[T]he people alone were the basis of government. All powers being derived from them, might, by them, be withdrawn at pleasure. They alone were the authors of the law, and to them alone, must the ultimate decision on the interpretation belong. From these delicate and popular truths, it was inferred, that the doctrine that the sovereignty of the nation resided in the departments of government was incompatible with the principles of liberty.85

 

Recall that Locke had held that in order to be legitimate a government must satisfy two criteria: it must secure the natural rights of its individual citizens, and it must enjoy the consent of those citizens; Locke held both to be indispensable. But there is a tension between these two principles when it comes to putting them into practice. The idea that the legitimacy of a system of government originates in the consent of the people can easily be interpreted to imply that “the people” should have an ongoing role in the political process, specifically in the form of voting. Lockeanism, therefore, tends in practice to entail a high degree of democratic participation in the political process. This brings it into conflict with the obligation to secure the rights of individuals from majority rule.

Locke himself, as I have said, was fully aware that pure majority rule is incompatible with the securing of the rights of individuals. He held that the people may, and indeed ought to, divest themselves to some extent of their rights of political participation and institute a less democratic form of government. This, incidentally, is approximately what the Americans did when they ratified their Constitution. They did vote to institute a decidedly less democratic form of government than had existed under the Articles of Confederation. Their new government could more effectively secure the rights of individuals while at the same time laying claim to enjoying the consent of the governed.

The ratification of the U.S. Constitution thus represented a commitment to maintaining Locke’s twin bases of political legitimacy. But the idea that “the people” are sovereign is a potent one. Any polity that subscribes to it will experience an ongoing, powerful tendency to expand the suffrage to include an ever-broader segment of the population. To whatever degree a polity submits to this tendency, to that extent will it find that the principle of individual rights as a basis of political legitimacy is threatened.

According to Corwin, the idea of natural rights reached the high point of its influence during the Revolutionary period. Thereafter it entered upon a period of decline. By the 1820s it had all but disappeared from political discourse. It did continue to exert an influence among the judiciary throughout the nineteenth century, but this was its last refuge as an active force. It was inevitable, under these circumstances, that the idea of individual rights as a basis of political legitimacy would also decline in influence.

Corwin reports that by 1830 or so the idea that anything to which the people formally give their consent is thereby rendered legitimate had gained ascendancy over the principle of individual rights as a basis of legitimacy.86 One consequence of this, says Corwin, was that the explicit clauses of written constitutions, as the embodiment of the express will of the people, achieved preeminence as fundamental law, much to the detriment of unwritten principles of natural law. In consequence of this, the Doctrine of Vested Rights, which up until 1830 had rested largely upon such unwritten principles, needed to find a home in some specific clause or clauses of the written constitutions and bills of rights of the nation.

Substantive Due Process

The use of a certain pair of constitutional clauses to protect property rights had begun in the late eighteenth century. At that time, judges began to use the “law of the land” clause contained in some of the state constitutions and, later, its historical equivalent, the “due process” clause, which appears in the Fifth Amendment of the U.S. Bill of Rights, to protect vested property rights from state legislative encroachments.

The “law of the land” clause derives from Magna Carta. It appears in the Massachusetts Constitution of 1780: “No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land.”87 Corwin points out that the “due process” clause derives from Chapter 3, Statute 28 Edward III of 1355: “No man of what state or condition he be, shall be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without he be brought to answer by due process of law.”88

Corwin notes, citing Coke, that the “law of the land” and the “due process” clauses had virtually the same meaning, which is that no one may be punished for breaking the law unless he is first tried and found guilty according to certain prescribed judicial processes. This was the meaning accorded the “law of the land” clause in a 1794 case in which the South Carolina Supreme Court voided as a violation of the “law of the land” clause of the state constitution a legislative enactment which permitted a municipal court to levy a fine without a jury trial.89

Corwin reports that the “law of the land” clause first came to the service of the Doctrine of Vested Rights in 1804. North Carolina v. Foy involved a legislative enactment rescinding an earlier grant of lands to a university. The Supreme Court of North Carolina voided the enactment as depriving the university of title to property in violation of the law of the land, i.e., without proper judicial proceedings. In this instance, we see associated with the “law of the land” clause the assumption that any legislative act that deprived someone of legally acquired property rights constituted a punishment, and that only a court could administer punishment.

Now, from the standpoint of justice, any legislative act which impairs legally acquired property rights is indeed the functional equivalent of a punishment, regardless of whether it is intended as punishment. It is entirely just, therefore, to require that no government impairment of vested property rights may occur without proper judicial proceedings. On the other hand, the “law of the land” and “due process” clauses historically had applied only to instances in which punishment was the intention behind the government’s depriving an individual of his rights. They applied, in other words, only to instances in which an individual had been accused of violating the law, and they stipulated that he could be punished for it only if he were tried and found guilty according to specified judicial procedures, such as a jury trial. It was an extension of the “law of the land” clause beyond its historically established application to employ it in a case in which the government’s deprivation of rights was not intended as punishment for a violation of the law.

The “due process/law of the land” manifestation of the Doctrine of Vested Rights took a huge leap in the 1856 case of Wynehamer v. New York. For one thing, the New York court was far more influential than that of North Carolina. But Wynehamer also broke important new ground. The statute in question prohibited the selling of most intoxicating liquors, including existing stocks thereof. It also prohibited the storage of any existing stocks in any place but a residence. The statute also called for the summary destruction of such stocks upon discovery, and it provided for the trial and punishment of violators of these prohibitions. On the basis of the statute’s effect upon existing stocks of liquor, the New York Supreme Court voided the statute as a violation of “due process.”

Now, the summary destruction of private property without a judicial proceeding is indeed a violation of due process. But the justices objected to more than this element of the statute. For one thing, they judged the statute’s diminishing of the value of existing stocks of liquor as a violation of due process as well. This objection applied to people who had not been prosecuted under the law, and who therefore had not been accorded due process in a judicial setting, but who nevertheless had had the value of their property severely diminished. They had indeed been deprived of most of a vested right without due process.90 But this was the first time that the due process clause had been used to void a statute that did not divest individuals of full title to their property, but merely diminished its value. (Recall that Kent had argued that “indirect” and “consequential” damages to property from legislative enactments ought to be compensated.)

But even beyond this the Wynehamer judges held, in effect, that the statute’s provision for trial and punishment for the possession of liquor that had been legally acquired also amounted to a violation of due process. They held, in other words, that an individual tried under this statute and accorded full judicial process before being deprived of his rights nevertheless had not been accorded due process if the property rights in question had been legally acquired before the passage of the statute.91 Under this interpretation, “due process” would require not only that prescribed judicial proceedings occur before a vested right could be taken away, but also that the statute in question be ascertained not adversely to affect property rights legally acquired prior to the passage of the statute. Wynehamer interpreted “due process” to have both a procedural component and a substantive one, the one requiring that certain judicial procedures be followed, the other that certain preexisting rights not be adversely affected by the statute in question; thus the term “substantive due process” to describe this expanded conception of the clause.

In a dissenting opinion, Judge T.A. Johnson said that “It might be urged with precisely the same pertinency and force, that a statute which prohibits certain vicious actions and declares them criminal deprives persons of their liberty and is therefore derogatory of the constitution.” 92 His point was that the Wynehamer interpretation of “due process” could be turned to the protecting of the rights of liberty as well as those of property, thus making it impossible to pass any statute declaring any act illegal which had been legal before the passage of the statute. This would amount, Corwin notes, to a virtual abolition of all legislative power to pass new laws of any kind.93 We hear echoes here of the objection that Justice Iredell had raised against the ex post facto clause in Calder v. Bull.

Wynehamer was a controversial decision when it came down. But Corwin reports that “In less than twenty years from the time of its rendition the crucial ruling in Wynehamer v. the People was far on the way to being assimilated into the constitutional law of the country.”94 As a result, by the last decades of the nineteenth century, the judicial protection of vested property rights, which at the start of the century had rested largely upon unwritten principles of natural law and the separation of powers, was on its way to securing a new home in a pair of explicit clauses of the federal and state constitutions. This development was facilitated by the existence of due process or law of the land clauses in almost all of the state constitutions.

From Wynehamer to the New Deal

Until well after the Civil War, the development of “substantive due process” as a judicial means of protecting property rights against legislative encroachment occurred entirely in the state courts. Although the Fifth Amendment to the U.S. Constitution contains a “due process” clause, this could not form a basis for the federal courts to employ “substantive due process” against state legislation because, until after the Civil War, the U.S. Bill of Rights applied only to Congress and not to the state legislatures. But 1868 brought the ratification of the Fourteenth Amendment, which did apply to the state legislatures, and which contained its own “due process” clause. Ratification of the amendment thus cleared the way for the adoption by the federal judiciary of the “substantive due process” doctrine.

But it would be a full generation before the Supreme Court would adopt it. Corwin attributes the delay to the fact that members of the Court feared that the Reconstruction program, and especially the Fourteenth Amendment, threatened to upset the Constitutional balance between federal and state power.95 Corwin argues that until a later Court decision limited the scope of Congress’ power under Section 5 of the amendment in an important respect, the Court had reason to believe that the amendment would render Congress much more powerful in relation to the states than the Constitution had ever contemplated.

Among the Court decisions that limited Congress’s power under Section 5 of the Fourteenth Amendment were the Civil Rights Cases of 1883. The Civil Rights Act of 1875 had made it a federal offense “for innkeepers, common carriers, and theater managers to refuse admission or accommodation to persons ‘on account of race, color, or previous condition of servitude.’”96 The Court overturned the act on the grounds that the Fourteenth Amendment authorized Congress to prohibit only positive state enactments mandating such discrimination, and not a state’s passive allowance of such discrimination by private individuals.97

Another important development on the road to federal adoption of “substantive due process” came in the Slaughterhouse Cases of 1873. These involved a Louisiana statute that established an animal-slaughtering monopoly in New Orleans. Those butchers who were deprived by the statute of their rights to practice their trade in New Orleans brought suit, arguing that they had been divested of these rights without due process of law. The Supreme Court rejected their argument, but the case is notable for Justice Bradley’s dissent, which would become influential later on.

 

Rights to life, liberty, and the pursuit of happiness are equivalent to rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with or the enjoyment of which can only be modified by lawful regulations necessary and proper for the mutual good of all.… This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.… [A] law which prohibits a large class of citizens from adopting a lawful employment previously adopted, does deprive them of liberty as well as property without due process of law.98

 

In 1884 the Court revisited the New Orleans slaughterhouse monopoly, this time to sustain a Louisiana statute that impaired the monopoly established by the earlier statute.99 Justice Bradley submitted as a now-assenting opinion his earlier dissent in the previous Slaughterhouse Cases. Corwin reports that Bradley’s opinion now became, as an assenting opinion, far more influential than it would have been as a dissenting one. Says Corwin, “Just as after the decision in Calder v. Bull the State judiciaries took over the task of defending vested rights against unjustifiable “retrospective” legislation, so now they took up the gauge in increasing numbers in behalf of “liberty of pursuit” or, as it soon came to be called, “liberty of contract,” especially in the field of labor relations.” 100

It would not be until 1897, however, after the Civil War generation of justices had left the Supreme Court, that the Court would take up the doctrine of “substantive due process” in earnest. In that year, in the case of Allgeyer v. Louisiana, the Court employed Bradley’s assent from the 1884 slaughterhouse case to set aside a Louisiana statute that made it illegal for citizens of that state to contract for marine insurance covering property in Louisiana with an out-of-state insurer not licensed to do business in Louisiana.

Then in the famous 1905 case of Lochner v. New York the Court set aside, as a violation of freedom of contract, a statute limiting working hours in bakeries to ten per day and sixty per week. For a generation following Lochner, federal courts would involve themselves in determining whether state statutes constituted a violation of individuals’ rights to liberty and property. Sometimes the courts would decide in favor of individual rights, sometimes in favor of the police power. It was not a period of complete laissez-faire, but it was a period when courts at all levels were actively engaged in scrutinizing legislation in the name of liberty and property.

In 1936, the Supreme Court voided a New York minimum wage statute for women and minors.101 Then in early 1937, hoping to defeat the Court opposition to his New Deal, President Roosevelt asked Congress to authorize him to appoint to the Court one additional justice for each sitting justice over age seventy. This effort to “pack” the Court failed, but on March 29, 1937 the Supreme Court, in an act of capitulation to Roosevelt, upheld a Washington State minimum wage law, overturning a 1923 decision. This decision, says Corwin, marked the beginning of the end of “substantive due process” as a limitation on the power of state legislatures.102 Two weeks later, in National Labor Relations Board v. Jones and Laughlin Corp the Court upheld Congress’s authority to compel companies to permit labor to organize and bargain collectively.

Prior to this decision, “liberty” had meant the absence of coercion, and governments secured liberty by punishing those who initiated the use of coercion. A labor contract was something that either party could end at any time for any reason (in the absence of explicit provisions to the contrary), as it still is today on the side of the employee. Thus, if an employer fired an employee for engaging in labor organizing, he was not initiating the use of force against that employee, so he was not violating his rights in any way.

NLRB v. Jones and Laughlin Corp. transformed “liberty” into something that an employer could violate without ever resorting to the use of coercion against an employee, but simply by ending his contract with the employee. It put the government in the position, in effect, of forcing an employer to remain in a contract with an employee against the employer’s will, all in the name of protecting the employee’s “liberty.” Such coercion by government of one group of people in order to make other people “free” was something the Supreme Court had ruled, back when it voided the Civil Rights Act of 1875, that Congress could not do. NLRB v. Jones and Laughlin Corp. marked the end of “substantive due process.” For two generations thereafter, the U.S. Supreme Court virtually ceased altogether to protect economic liberties against legislative infringement. The fundamental reasons for this abrupt reversal form the subject of the next chapter.

Property Rights and the Constitution: Conclusion

An essential purpose of the U.S. Constitution was to make property rights secure. The means of accomplishing this was not to list property rights in a federal bill of rights and then to expect the courts to protect those rights against government encroachment. To begin with, a federal bill of rights would apply only to the federal government, whereas the primary threat to property rights to date had been the state legislatures. As to enforcing such a bill of rights against the federal government, the U.S. Supreme Court would not even claim the authority to do so until 1808, and it would not actually exercise that authority until a half century after that.103 Furthermore, many of the states had included property in their own Revolutionary era bills of rights, but this had failed notoriously to make property rights secure. One reason for this failure was that the state courts had lacked clear authority to enforce the state bills of rights as against the acts of their respective state legislatures. For another, it would have been difficult to enforce such generalized rights as “life, liberty, and property” against legislative enactments. But the main reason the states had failed to secure the rights of property was that they had lacked the constitutional structure needed to maintain those rights against the forces of democracy.

Rather than employ a bill of rights strategy, therefore, the Framers of the Constitution employed a primarily architectural one. They concentrated on devising a structure of government, and a distribution of powers within that structure, that would be capable of maintaining the security of property rights against the kinds of pressures likely to assail them. The very existence of the Constitution, and the specific structure of government delineated by it, are an expression of the Framers’ intention to make property rights secure. Indeed, the Framers were more intent on protecting property rights than they were on protecting such other rights as freedom of religion, speech, and press. These latter rights gained explicit constitutional protection only as an afterthought, when the First Congress appended the Bill of Rights to the newly ratified Constitution.

But did the Framers intend to render property rights constitutionally inviolable in the way that freedom of religion, speech, and press, have since become (relatively) inviolable? The constitutional inviolability of individual rights, as we understand it today, did not exist in 1787, and it only developed gradually over time. The dominant political tradition during the American founding era was the one embodied in the unwritten British Constitution. Under that tradition, there existed bills of rights, but these did not have the force of law in the sense that there existed a formal, institutional mechanism for enforcing them as against acts of Parliament. Certain traditional rights were widely considered to be inviolable, but they were only politically inviolable, in that no Parliament would dare risk the political uproar that would ensue following any Parliamentary attempt to abrogate those rights. Such rights were not, in fact, legally inviolable. Legally, Parliament had the authority to legislate such rights out of existence.

Under such a system of “legislative supremacy,” the integrity of individual rights depended on the discretion of Parliament and, ultimately, upon the electoral process. The British people did not object to this system of Parliamentary supremacy in large part because, historically, Parliament had been the protector of the Rights of Englishmen against assaults by the British Crown.

This was the reigning model available to the Framers as they set about devising a constitution for the United States. Their first departure from the British model was the very act of devising a written constitution. This was itself a fundamentally Lockean undertaking, a people contracting among themselves to devise a frame of government from nothing. (Or almost from nothing; the state governments that would be an integral part of this constitutional structure were already in existence.)

This first departure from the British model, a written constitution expressly ratified by the governed themselves, would have profound consequences for the legal status of individual rights in the new American polity. As a fundamental expression of the political will of the sovereign entity in this new polity, the people themselves, the written Constitution would acquire the force of law, fully enforceable by the courts. Thus the rights identified in the Constitution and its amendments would also become legally enforceable in a way that rights had never been enforceable under the British Constitution. But the full implications of such conceptions as written constitutions and popular sovereignty, including the judicial enforceability of constitutional rights, would only become clear over time; they were not fully apparent to the Framers in 1787.104

As for property rights, the key to securing them against legislative encroachment would prove to be the placing of strict, judicially enforceable limits on the “powers” of taxation, eminent domain, and police. When the Framers met at Philadelphia in 1787, the idea of natural rights was only a century or so old. The Americans would be the first people in history to attempt to give institutional form to this new idea. No one anywhere had, as yet, grasped that to give effect to natural rights, short of abolishing the “three powers” outright, men would have to place certain limitations on those powers.

The English had pioneered the way toward limiting one such power, that of eminent domain, when they evolved the practice of compensating eminent domain takings. And in the mid-1600’s the Dutch natural law theorist, Hugo Grotius, advocated compensation for takings and a public use limitation, as a matter of fundamental justice. But not until James Kent began publishing his Commentaries in the 1820s would anyone conduct a full, systematic analysis of the “three powers” that touch property rights and the limitations needed to be placed on them in order to make property rights as secure as their status as natural rights merited. Specifically, until the Framers gathered in Philadelphia that summer of 1787, no one had as yet recognized a need to, and proposed a way to, limit either the taxing or the police powers in accordance with the requirements of natural rights.

In the Contract and Ex Post Facto clauses, the Framers would make the first attempt in history to place limitations on the police power, although they likely did not think of what they were doing in those terms. It is doubtful they ever conceived of a need to limit something called the “police power,” per se. More likely, they thought they were prohibiting only certain specific manifestations of legislative power, such as legal tender, stay, and moratory laws. But the ex post facto clause had the potential to develop into a formidable limitation on the police power, as George Mason and James Iredell recognized.105

The Americans achieved a momentous advance when they prohibited the exercise of the police power in the realms of religion, speech, and press. As worded, this prohibition was a complete one. And, as America’s constitutional history has unfolded, this prohibition has proven to be a model of how to limit a “power” of government. But the Framers’ pioneering attempt to limit the police power as it touches property rights would prove short-lived. The reason, as I have said, was that it had the potential, via the Ex Post Facto Clause, to become as complete a prohibition as the one shielding religion, speech, and press. But from the beginning of the Republic, there never has been sufficient agreement among American lawmakers and jurists about the need to limit the government’s power to regulate private property in the way that the power to regulate the dissemination of ideas was limited.

Had the science of securing individual rights been more advanced in 1787, things might have developed differently. Kent’s idea of limiting the police power primarily to the traditional common law of nuisance, and then awarding compensation for all legislative encroachments upon private rights that went beyond nuisance abatement, would have limited the police power without abolishing it altogether. Had this idea been available to the Framers in 1787, then perhaps this limitation would have developed into as solid and long-lasting a defense of property rights as the comparable limitations on the eminent domain power did.

“Freedom of religion,” as it is enunciated in the First Amendment, was a relatively new concept in 1790. The amendment states that “Congress shall make no law respecting an establishment of religion.” Neither the Constitution nor the Bill of Rights prohibits an establishment of religion by the state governments; indeed, state establishments of religion continued for some time after the ratification of the Constitution. But in passing the First Amendment the United States adopted what has proven to be the principle of religious freedom. Widespread acceptance of this principle eventually lead the remaining states with established churches to disestablish them. Over time, individual states added religious freedom clauses to their own constitutions. The current effort to ban prayer from public schools is a logical extension of this principle of religious freedom, however unintended such a ban was on the part of the authors of that clause.106 The acceptance of the principle of religious freedom has, since 1791, worked inexorably toward effecting a complete separation of church and state.

Likewise, the idea of a right of private property, though much older than the idea of religious freedom, was still far from fully realized in 1787. But just as the principle of religious freedom, once accepted, would lead to an ever-widening separation of church and state, so the principle of the inviolability of private property would continue to develop, as we have seen, throughout the nineteenth century. For example, the Fifth Amendment formally recognized the principle that “takings” of private property should be compensated. Following the ratification, state after state added similar clauses to their own constitutions.

In the beginning, only physical takings of full title to property were compensated. But the principle underlying the takings clause inarguably requires the compensation of all takings, whether full or partial, and whether effected by the power of eminent domain or by police regulation. Impelled by the logic of the principle, the U.S. Supreme Court accepted the need to compensate partial takings involving physical invasion in 1871, and in 1922 it accepted the need to compensate partial, “regulatory takings” that involved no physical invasion of property at all but merely a diminution in value. In the development of constitutional enforcement of freedom of religion and the right to compensation for takings, we see how the initial commitment to a correct principle issued eventually in applications of the principle, and a consequent expansion of liberty against government not contemplated by the Founders.

Likewise, the Ex Post Facto Clause, construed to apply to civil as well as criminal matters, also enunciated a principle, that legislation should not adversely affect existing rights (especially property rights, as the Framers intended the clause). (This principle, especially as it applies to property rights, did not depend entirely on the Ex Post Facto Clause for its place in the Constitution; it was, as I have shown, an important reason for the very existence of the Constitution and the form of government laid out therein.)

Even after the Supreme Court limited the reach of ex post facto to criminal matters only, the principle underlying that clause continued to manifest itself in increased security of property rights against legislative infringement. In the first half of the nineteenth century, for example, courts ended the practice of legislative interference in judicial matters, especially those involving property rights. In a related development, the courts also ended “special” legislation that applied to the property of specific, named parties. In the second half of the century, courts enlisted the doctrine of substantive due process to do what the Ex Post Facto Clause should have been able to do in the first place. Substantive due process, however, is best understood not as a net advance for property rights, but, rather, as a holding action against a burgeoning police power.

In the case of freedom of religion, speech, and press, this salutary process of growth has continued to the present day. But the corresponding development of the rights of property was cut short, beginning about a hundred years ago. In principle, property rights ought to be every bit as inviolable today as are freedom of religion and freedom of speech. Indeed, freedom of religion, freedom of speech, and private property form an integrated whole, the first representing, in a general sense, the freedom to think as one chooses, the second the freedom to communicate one’s thoughts freely, and the third the freedom to act upon those thoughts as one sees fit. To secure the freedom to think and the freedom to communicate one’s thoughts, without also securing the freedom to act, is, ultimately, to leave all rights vulnerable to government infringement.

But that is the contradictory course the United States has pursued for most of the past century. Several factors conspired to ensure that the development of property rights would be cut short, whereas that of such rights as freedom of speech and religion would continue to this day. One such factor is that, for the reasons I have already identified, property rights were never explicitly endorsed as inviolable rights in America’s two formative documents, the Declaration of Independence and the U.S. Constitution cum Bill of Rights. This placed property rights at a distinct disadvantage when, by the 1830s, courts found themselves limited to protecting only those rights that were explicitly identified in constitutions or bills of rights.

A second reason that the constitutional securing of property rights never reached full development in America has been, on the one hand, the inherent difficulty of securing them in the face of the three “powers” of government, taxation, eminent domain, and police, and, on the other, the ambivalence toward making property rights inviolate to which the existence of these powers gave rise. But the single factor most responsible for cutting short the development of constitutional protections for property rights has been the opposition they faced from the democratic conception of “popular sovereignty,” which derives from the Lockean idea of the consent of the governed. It was, in part, expressly to bring an end to assaults upon property rights issuing from “an excess of democracy” that the Framers gathered in Philadelphia in 1787 and devised the specific form of government they did.

In the 1905 case of Lochner v. New York, Justice Oliver Wendell Holmes averred:

 

This case is decided on an economic theory which a large part of the country does not entertain.… [A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez-faire.… I think the word “liberty” in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.107

 

Holmes argues here that the passing of legislation that infringes, or even abolishes, the property rights of individuals is entirely consistent with the letter and spirit of the U.S. Constitution, if that legislation is reflective of a “dominant opinion.” He argues, in other words, that under the U.S. Constitution the securing of the property rights of individuals is not a matter of fundamental, inviolable right, but that it is, rather, a matter of majority vote.

But one of the purposes of the U.S. Constitution, as stated in the Preamble, is to “secure the Blessings of Liberty to ourselves and our Posterity.” If it were possible to secure liberty without reference to a “particular economic theory,” then Holmes might have been correct when he said that the Constitution does not embody any particular economic theory. But there is in fact only one “economic theory” that is compatible with the securing of liberty, and that is the economic theory based on private property. The Framers of the U.S. Constitution were fully aware of this connection between liberty and property. History and experience had taught them that unrestrained democracy was antithetical to the securing of property rights and, thus, to liberty. The triumph of Holmes’ counter-principle, which would be accomplished through the efforts of the Progressive movement, would thus represent the undoing of the Constitution in a fundamental respect that the Framers had considered essential to their purposes. The details of this undoing form the subject of the next chapter.

One final point, though. One of the greatest threats to private property rights today comes not from the states but from the federal government. It comes in the form of environmental legislation, such as the Clear Air and Clean Water Acts. The constitutional grounds for this legislation is not any one of the three powers of government, but Congress’s Constitutional power “to regulate commerce … among the several states.” As I have said, the original purpose of this clause was to lodge in the federal government the sole authority to regulate interstate commerce, thereby prohibiting the states from erecting the kind of interstate barriers to trade that had been common during the Confederation period. The purpose of the Commerce Clause, in other words, was to eliminate the regulation of interstate commerce—and most assuredly not to create a new, federal power to interfere in interstate commerce, much less intrastate commerce.

As I have argued, the Commerce Clause functioned as intended for almost a century, until the Progressives began to distort its meaning. It has since evolved into a plenary power to regulate any economic activity even remotely related to interstate commerce, a power such as the Framers would never have imagined. One might argue that the Progressives have simply twisted the Commerce Clause to mean something it was never intended to mean in just the same way as the advocates of substantive due process once twisted the due process and law of the land clauses to suit their purposes. But those nineteenth century jurists were reacting to changes in the interpretation of the Constitution that the Framers could never have foreseen, and in light of those changes they were attempting to re-interpret certain clauses of the Constitution in order to serve the Framers’ original intention to make property rights secure against legislative infringement.

The Progressives, on the other hand, in reinterpreting the Commerce Clause to mean exactly the opposite of what the Framers intended, have been working to defeat the intentions of those Framers. The Constitutional remedy for the metastasizing of the Commerce Clause into a plenary power to regulate all things economic between and within the states is simply to interpret the Commerce Clause as it was originally intended to be understood.

Notes

1. Aristotle, The Politics of Aristotle, trans. Ernest Barker (London: Clarendon Press, 1946), 3, 1280B.

2. John Adams, The Works of John Adams, ed. Charles Francis Adams ( Boston, MA: Little, Brown, and Company, 1850-56), 3, 470.

3. Ibid., 6, 206-7.

4. Ibid., 4, 553.

5. Ibid., 4, 554.

6. John Adams, Letter to Rev. De Walter, October, 1797. Quoted in C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence, KS: University of Kansas Press, 1998), 119.

7. Adams, Works, 5, 453-4.

8. Declaration of Independence.

9. Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813. Quoted in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York, NY: The Library of America, 1984), 1291.

10. Thomas Jefferson, Letter to DuPont de Nemours, April 24, 1816. Quoted in Peterson, ed., Writings, 1387.

11. Jean Yarbrough, “Jefferson and Property Rights,” in Liberty, Property and the Foundations of the American Constitution, ed. Ellen Frankel Paul and Howard Dickman (Albany, NY: State University of New York Press, 1989), 68.

12. Thomas Jefferson, Letter to James Madison, Oct. 28, 1785. Quoted in Papers of Thomas Jefferson, ed. Julian Boyd, (Princeton, NJ: Princeton University Press, 1950), 8, 682.

13. Emphasis added.

14. Thomas Jefferson, Prospectus recommending the political economist DeStrutt de Tracy, copy sent to Joseph Milligan, April 6, 1816. Quoted in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb & Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Assocation, 1903), 14, 456. Emphasis in original.

15. Locke, Two Treatises, II, 138, 3-8.

16. William Blackstone, author of Blackstone’s Commentaries and the authority on English law among the Americans, held a similar view. William Blackstone, Commentaries on the Laws of England, ed. Wayne Morrison (London and Sydney: Cavendish Publishing, Ltd., 2001), 2, 3-11.

17. Ibid., 340.

18. Preamble to the Constitution of the United States.

19. The Roots of the Bill of Rights, ed. Bernard Schwartz (New York, NY: Chelsea House, 1980) 2, 234.

20. Gouverneur Morris, Records of the Federal Convention of 1787, ed. Max Farrand (New Haven, CT: Yale University Press, 1966), 1, 536. Emphasis in original.

21. Farrand, Records, 1, 536-7, 541-2.

22. Farrand, Records, 1, 541.

23. See The Politics of John Dickenson, ed. Paul Leicester Ford (Cambridge, MA: Da Capo Press, 1970), 44 and George Athan Billias, Elbridge Gerry: Founding Father and Republican Statesman (New York, NY: McGraw Hill, 1972), 548, note 33.

24. William Patterson, Vanhorne’s Lessee V. Dorrance, 2 U.S. 304 (1795).

25. Hugh Williamson, “Remarks on the New Plan of Government” in Essays on the Constitution of the United States Published during Its Discussion by the People, ed. P. Ford (Brooklyn, NY: Historical Printing Club, 1892). Quoted in Michael Kammen, “The Rights of Property, and the Property in Rights: The Problematic Nature of Property in the Political Thought of the Founders and the Early Republic,” Paul and Dickman, Liberty, 1.

26. Chief Justice John Marshall, Ogden v. Saunders, 25 U.S. (12 Wheaton) 213, 354-55 (1827).

27. “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another …”

28. William Winslow Crosskey, Politics and the Constitution (Chicago, IL: The University of Chicago Press, 1953), 298-392, 304-307.

29. S.E. Morison, H.S. Commager, and Wm. E. Leuchtenburg, The Growth of the American Republic (New York, NY: Oxford University Press, 1969), 240.

30. Crosskey, Politics, 965-66.

31. George Bancroft, History of the United States (New York, NY: D. Appleton and Company, 1885), 6, 171.

32. Ibid., 172.

33. Ibid., 173.

34. Farrand, Records, I, 48.

35. James Madison, Federalist No. 10, The Federalist Papers, ed. Clinton Rossiter (New York, NY: New American Library, 1961), 79.

36. Ibid., 78.

37. Ibid., 84.

38. James Madison, Letter to James Monroe, Oct. 5, 1786 , The Papers of James Madison , ed. William T. Hutchinson and William M.E. Rachal (Chicago, IL: University of Chicago Press, 1975), 9, 140-41.

39. Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago, IL: Callaghan & Co., 1904), 11.

40. Ibid., 21.

41. Less harm is done by police regulations that require a complaint from a harmed property owner to trigger enforcement of a nuisance ordinance. But police regulations today typically prohibit, for example, sending smoke from a factory across neighboring lands regardless of whether the owners of those lands object. In this way, police regulation has moved away from its common law concern with protecting the rights of individuals and has moved toward a notion of protecting the “rights” of the public considered collectively.

42. A direct tax is a tax placed on an individual. Until the passage of the Sixteenth Amendment, income taxes were classed as direct taxes. As for “apportioning” such a tax, if Rhode Island, for example, had 5% of the population of the U.S., then the amount collected from Rhode Islanders under a direct tax would have to equal 5% of the total amount collected by the federal government.

43. United States v. Butler, 297 U.S. 1 (1936). Cited in Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA and London, England: Harvard University Press, 1985), 296. Edward Corwin reports that what constituted a “public purpose” had by 1880 become a question reserved to the courts in “probably…every State in the Union.” Edward Corwin, Liberty against Government (Baton Rouge, LA: Louisiana State University Press, 1948), 79.

44. William Stoebuck, “A General Theory of Eminent Domain,” Washington Law Review 47, 4 (August, 1972): 554.

45. The 2005 Kelo decision, which abolished the public use limitation on the power of eminent domain, is a symptom of the deterioration of the U.S. legal system.

46. U.S. Constitution, Article I, Section 10.

47. Wrote “Lycurgus,” for example, in The New-Jersey Gazette on November 1, 1784, “ex post facto laws to lessen the right of the creditor [were] incompatible with the station [America] ha[d] taken among the nations, and [were] inconsistent with foreign commerce.” Crosskey, Politics, 326. Brackets in Crosskey.

48. Farrand, Records, 2, 376.

49. The case involved an act by the Virginia Legislature that was intended to clarify the meaning of an earlier act by the same body, but which was intended to apply to actions which had occurred after the passage of the first act but before passage of the second. The act in question, the second one, dated from 1787, which placed it before the adoption of the U.S. Constitution, so the ex post facto prohibition in the Constitution was not a factor. The Virginia constitution of the time did not contain an ex post facto prohibition. The judge in the case was Edmund Pendleton, who had earlier presided over the Virginia state convention that had ratified the U.S. Constitution. Said Pendleton, “They [the legislature] may amend as to future cases, but they cannot prescribe a rule of construction, as to the past. For a legislative interpretation, changing [property] titles founded upon existing statutes, would be subject to every objection which lies to ex post facto laws, as it would destroy rights already acquired under the former statute, by one made subsequent to the time when they became vested.” Turner v. Turner’s Executrix, Va. (4 Call) 237 (1792).

50. Farrand, Records, 2, 640.

51. Calder v. Bull involved a case in which an enactment of the Connecticut Legislature overturned the finding of a probate court that a will was invalid. The party aggrieved by the Legislature’s action appealed to the U.S. Supreme Court on the grounds that the legislative enactment depriving him of legally vested property rights amounted to an ex post facto law.

52. See Crosskey, Politics, chapter 11.

53. Note appended to Johnson’s opinion in Satterlee v. Matthewson, 27 U.S. (2 Peters) 380, 416n. (1829).

54. Calder v. Bull, 3 U.S. (3 Dallas) 386, 388-89 (1798).

55. Emphasis added.

56. Pumpelly v. Green Bay Co.

57. Although Kent denied the validity of Locke’s idea of a state of nature, he did subscribe to the concept of property as a natural right. “The sense of property is inherent in the human breast and the gradual enlargement and cultivation of that sense from its feeble force in the savage state to its full vigor and maturity among polished nations forms a very instructive portion of the history of civil society. Man was fitted and intended by the author of his being for society and government and for the acquisition and enjoyment of property. It is, to speak correctly, the law of his nature.…” Echoing Madison, he said, “ A state of equality as to property is impossible to be maintained, for it is against the laws of our nature.…” And, sounding like John Adams denying the virtue of Spartan asceticism, Kent said, “No such fatal union (as some have supposed) necessarily exists between prosperity and tyranny or between wealth and national corruption in the harmonious arrangements of Providence.” James Kent, Commentaries on American Law (Boston, MA: Little, Brown, and Company, 1896), 2, 318 ff. Quoted in Corwin, Liberty, 77-78.

58. Kent, 2, 340.

59. Corwin, Liberty, 81.

60. Kent, Commentaries, 2, 340.

61. Corwin, Liberty, 81.

62. Kent, Commentaries, 2, 339, note a.

63. The Court awarded compensation for land permanently flooded consequent to the building of a statute-authorized dam.

64. Mahon owned a home whose deed reserved the underground mineral rights to the Pennsylvania Coal Co. The deed explicitly absolved the company from liability should their mining beneath the house cause damage to the house. Pennsylvania’s Kohler Act, passed long after the deed took effect, required the company to leave enough coal in place under the house to prevent damage to the house. Although the police regulation did not involve any sort of physical invasion of the coal company’s property, the Court ruled that the company were due compensation from the State for the “taking” of the coal they were required to leave in place under Mahon’s house.

65. Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council.

66. Kent, Commentaries, 2, 331.

67. Calder v. Bull, 388-89.

68. Corwin, Liberty, 71-72, 75.

69. Ibid., 70.

70. Ibid., 73.

71. Ibid., 72. Emphasis in the original.

72. Benjamin Fletcher Wright, The Contracts Clause of the Constitution (Cambridge, MA: Harvard University Press, 1938), 10.

73. Gibbons v. Ogden, 22 U.S. (9 Wheaton) 1, 211 (1824).

74. Both James Kent and Joseph Story, another champion of property rights on the Supreme Court, advocated judicial protection of the kind of state-sponsored monopoly involved in the Gibbons case. A fair reading of the opinions of both men would disclose that they were not at all advocates of the kind of union of commerce and state that Alexander Hamilton had promoted. Rather, they labored under the economic premise, common at the time, that without the incentive of state-sponsored monopolies entrepreneurs would lack the motivation to risk their wealth on such “public” endeavors as turnpikes, bridges, and ferry lines. It is worth noting that such monopolies tend to promote private ownership and management of such facilities.

75. In Gibbons v. Ogden, Marshall achieved this “negative” good by asserting the power of the federal government. The question whether a powerful federal government has ever been the best means of securing individual liberty in the United States is beyond the scope of this book. My purpose is only to show that for the Framers of the Constitution, and for such Federalists as Marshall, the protecting of individuals’ property rights was a central purpose of government, and the establishing of a powerful federal government, as a check upon the state legislatures, was a primary means to this end.

76. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133, 135 (1810).

77. The Antelope, 23 U.S. (10 Wheaton) 66, 120 (1825).

78. Ogden v. Saunders, 25 U.S. (12 Wheaton) 213, 346 (1827).

79. It is also worth noting that a logically consistent application of the principle underlying the compensation requirement, as well as literal interpretation of the clause itself, would require that all “takings” of private property be compensated, whether full or partial, direct or “consequential,” and whether effected by eminent domain or police regulation.

80. Samuel Eliot Morison, The Oxford History of the American People (Oxford, England: Oxford University Press, 1965), 421.

81. Corwin, Liberty, 85.

82. Crosskey, Politics, 696.

83. Charles River Bridge Co. v. Warren Bridge Co., 36 U.S. (11 Pet) 420, 547-48, 552 (1837).

84. Corwin, Liberty, 88. Emphasis in the original.

85. John Marshall, Life of Washington, (Philadelphia, PA: Crissy & Markley, and Thomas, Cowperthwait and Company, 1850), II, 281-82.

86. Corwin, Liberty, 84-85.

87. Ibid., 90-91.

88. Ibid., 91.

89. Zylstra v. Charleston, 1 S.C.L. (1 Bay) 382, 384 (1794). See Corwin, Liberty, 91-92.

90. Crosskey, Politics, II, 1148.

91. Corwin, Liberty, 102-03.

92. Wynehamer v. The People of New York, 13 N.Y. 378, 468 (1856). Quoted in Corwin, Liberty, 104.

93. Corwin, Liberty, 104.

94. Ibid., 114.

95. Ibid., 118.

96. Ibid,. 134, quoting the Civil Rights Act of 1875 (18 Stat. 335-337).

97. Since the U.S. Supreme Court itself already possessed the power to prohibit positive state actions, this decision eliminated the danger that a branch of the federal government would acquire a new power over the states, the power to prohibit passive tolerance of private discrimination by state and local governments.

98. The Slaughterhouse Cases, 83 U.S. (16 Wall) 36, 116, 122 (1873).

99. Butcher’s Union v. Crescent.

100. Corwin, Liberty, 136.

101. Morehead v. N.Y. ex rel. Tipaldo.

102. Corwin, Liberty, 159.

103. Dred Scott v. Sandford.

104. As I have said, the federal courts did not even assert the authority to enforce rights against the federal legislature until 1808, and they did not actually exercise it until a half century later. (Marbury v. Madison, Dred Scott v. Sandford.) The authority of the federal courts to enforce the federal Bill of Rights against the state legislatures was not tested (and denied, the first time around) until forty-three years after the ratification of the Constitution. (Barron v. Baltimore, 1833)

105. The contract clause could also have developed into an important defense of freedom of contract had the courts not limited its application to already-existing contracts. William Crosskey, for one, argued that the clause should indeed be interpreted to ban all legislation “impairing the obligation of contracts,” not just acts that affect contracts entered into before the legislation in question was enacted. Crosskey, Politics, Chap. 12.

106. Just as no citizen should be forced, through taxation, to support the dissemination of religious ideas with which he disagrees, so, and for the identical reason, should no citizen be forced to support the dissemination of any ideas with which he disagrees. Since schools are in the business of disseminating ideas, the real problem with prayer in tax-supported schools is not the prayer but the existence of the schools themselves. To sponsor praying in them is simply to compound a wrong.

107. Lochner v. New York, 198 U.S. 45, 75-76 (1905).

 


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Tom McCaffrey grew up in Providence, Rhode Island. He graduated from Brown University in 1973 with a degree in English. He taught high school math for a number of years and is currently a realtor in California.


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