Tuesday, May 13, 2014

The Guardian of Every Other Right: Part I

"Intellectual freedom cannot exist without political freedom; political freedom cannot exist without economic freedom; a free mind and a free market are corollaries." – Ayn Rand, 1963*

At the end of Ayn Rand's prophetic 1957 novel, Atlas Shrugged, a judge who is on strike with other producers against a future, nightmarish state of America (echoes of Obama) and has disappeared with them into a Rocky Mountain sanctuary, is at work. Before him is a "copy of an ancient document [the Constitution]. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: 'Congress shall make no law abridging the freedom of production and trade…'"

I am sure that Rand scoured the Constitution for its virtues and flaws, and very likely read books on its history. But I am not so certain she ever did a study of state constitutions. One of the contradictions she does not allude to in the novel is the authority which that "ancient document" bestowed on the states at ratification to "regulate" their economies, production, and trade, which power the federal government was prohibited, in many instances, from interfering with. Had that issue occurred to Judge Narragansett, he might have added another clause: "Congress shall have the power to nullify states' laws abridging the freedom of production and trade within their boundaries…."  Or words to that effect.

James W. Ely, Jr., wrote a gem of a history of the Constitution that focuses almost exclusively on the treatment of property rights, from colonial times to the present, The Guardian of Every Other Right: A Constitutional History of Property Rights.  It is one of the handiest and briefest digests of the history of property rights vis-à-vis federal and state courts and legislative acts I've come upon, written in clear, succinct language. For anyone imbued with the ambition to tackle The Federalist, the Constitutional Convention debates, and the papers of Founders such as Thomas Jefferson, James Madison, and Alexander Hamilton, Ely's book can serve as a nonpareil introduction to the subject of property rights in a political context.

Ely underscores on virtually every page that not only was Congress guilty of violating individuals' property rights by abridging the freedom of production and trade, but that, for the longest time, it was the states that were the greater and more frequent violators and usurpers.  

The National Archives reveals just how contentious ratification was over the necessity of a Bill of Rights, together with the states claiming sovereignty over what transpired within their boundaries:

…Federalists argued that a catalogued list might be incomplete and that the national government was so constrained by the Constitution that it posed no threat to the rights of citizens. Ultimately, during the ratification debate in Virginia, Madison conceded that a bill of rights was needed, and the Federalists assured the public that the first step of the new government would be to adopt a bill of rights….

The first real test for ratification occurred in Massachusetts, where the fully recorded debates reveal that the recommendation for a bill of rights proved to be a remedy for the logjam in the ratifying convention. New Hampshire became the ninth state to approve the Constitution in June, but the key States of Virginia and New York were locked in bitter debates. Their failure to ratify would reduce the new union by two large, populated, wealthy states, and would geographically splinter it. The Federalists prevailed, however, and Virginia and New York narrowly approved the Constitution. When a bill of rights was proposed in Congress in 1789, North Carolina ratified the Constitution. Finally, Rhode Island, which had rejected the Constitution in March 1788 by popular referendum, called a ratifying convention in 1790 as specified by the Constitutional Convention. Faced with threatened treatment as a foreign government, it ratified the Constitution by the narrowest margin (two votes) on May 29, 1790.

Ely provides an insight into why property rights (though he does not explicitly name it), initially and largely protected and upheld in the first half-century of the republic by the Supreme Court, and especially by Virginian John Marshall, the fourth Chief Justice of the Supreme Court (1800-1835), began to be whittled away in conflicts between the federal and state governments, and between an individual and either the federal or state governments. In virtually every case Ely recounts, the cited moral basis for upholding property rights was a collectivist one: It was to serve "the public interest," a "public purpose," a "public benefit," the "public interest," the "interests of the community," and for "public order and safety." In no case he reviews and discusses does he report that individual rights were inviolate and absolutely inalienable, or that such rights were in the forefront of court decisions. Individual rights, even though they were alluded to in other terms, were a secondary consideration when deliberating on the constitutionality of a rights violation, and had to defer to the commonweal or a public collective if absolutely necessary.

The Founders, and even John Marshall, for all their brilliance and fealty to freedom, were still hampered by errors and contradictions that would lead, beginning roughly in the second half of the nineteenth century, to statism and tyranny.

Ely warns us in his Introduction about the role of the Supreme Court in upholding property rights:

…[T}he Supreme Court's historic role of supporting economic rights has sometimes generated allegations of class bias, sentiments that have been echoed by subsequent commentators. "The federal courts," one scholar charged, "have through most of the country's history been the guardians of wealth and property against the excesses of democracy…."

But at no time has the Court blocked all regulatory or redistributive legislation or sought to impose a strict laissez-faire régime. Furthermore, judicial review of economic and social legislation, such as health and safety regulations, has not always resulted in rulings favorable to business interests. (p. 5)

In his chapter, "The Origins of Property Rights: The Colonial Period," Ely traces the beginnings of individual property rights in America, largely rooted in English common law. Stemming from the notion of "quitrents, annual payments to the king or overlord, Feudal in origin, the quitrent was regarded as a form of taxation," with the Crown regarding all property as its own and its inhabitants and developers treated as mere stewards of the property. But in the vast area of North America, this practice was not only resented, but impractical. Even so, Ely relates:

Colonial appreciation of property rights was strongly shaped by the English constitutional tradition. Americans associated property rights with the time-honored guarantees of Magna Carta (1215). Originally forced on a reluctant King John to protect the privileges and property of the nobility, Magna Carta became a celebrated safeguard against arbitrary government. Several important provisions of the Great Charter protected the rights of property owners. (pp. 11-13)


Ely cites the influences of John Locke's Second Treatise on Government (1689) and various Whig theorists on the development of natural law and William Blackstone's Commentaries on the Laws of England (1765-1769) discourse which links natural and common law.

"So great moreover," Blackstone observed, "is the regard of the law for private property, that it will not authorize the least violation of it." Whig political thought profoundly shaped public attitudes in colonial America, and Blackstone's Commentaries were widely studied as a summary of English law. Consequently, both their circumstances and philosophical heritage induced the colonists to affirm the sanctity of property rights. (p. 17)

Moving to the Revolutionary Era, Ely cites a crucial assertion about the sanctity of property rights:

Throughout the revolutionary era, Americans emphasized the centrality of the right to property in constitutional thought. "The right of property," Arthur Lee of Virginia declared [in 1775], "is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty." (p. 26)

Lee's statement implicitly concurs with Rand's statement that without economic freedom – which would include property and the freedom to dispose of it without government leave – there can be no intellectual or other freedom. Political, intellectual, and economic freedoms are trilaterally codependent; to deny one freedom is to abridge or destroy the other freedoms.

That idea is at variance with the notion of a republican (as opposed to a democratic) form of government. Ely wrote:

To newly independent Americans, respect for economic rights did not encompass unfettered liberty to use property in any manner. The theory of republicanism, influential during the revolutionary era, subordinated private interests to the pursuit of public welfare. As one historian [Gordon S. Wood, cited in an end note] observed, "The sacrifice of individual interests to the greater good of the whole formed the essence of republicanism." Consequently, republicanism justified the regulation of private economic interests to promote the common good. The notion of the general welfare embodied in the republican ideal sometimes clashed with the rights of individual property owners and the growing ideology of a free-market economy. (p. 33)

From the very beginning, altruism, or the sacrifice of the individual to the collective, adulterated the concept of property rights. The error was fatal and would influence the course of the republic for generations to come. In doing so, it would also work to diminish the security of the other two freedoms.

Another fatal error was committed when Thomas Jefferson (and his editors, Benjamin Franklin, John Adams, Roger Sherman, and Robert Livingston) omitted property from the unalienable rights of "Life, Liberty, and the pursuit of Happiness" in the second paragraph of the Declaration of Independence. Some interpreters have argued that "pursuit of happiness" was a calculated euphemism for property suggested by one of Jefferson's editors, either Adams or Franklin.

Many delegates to the Continental Congress were recalcitrant slave-holders who regarded their slaves as property not to be seized, taxed as property, or manumitted by the new government. Their support for the independence movement was crucial in order to reach unanimity in the colonies' bid for political independence. Other delegates refused to include slaves as property. Jefferson and his editors compromised and settled on "pursuit of happiness," leaving out a whole section that condemned slavery. (See Jefferson's penultimate draft here, which contains the omitted section on slavery.)

The southern states, as Ely writes in most of the following chapters of The Guardian, exerted inordinate influence on the status of property rights in the country over the next century and a quarter.

Ely records the development of property rights in his chapter, "Property Must Be Secured."

Harboring little faith in the people, the framers [at the Constitutional Convention of 1787] were not democrats in any modern sense. Indeed, they viewed popular government as a potential threat to property rights. The convention debates were held in a high intellectual level. Dominated by northern merchants, southern planters, and lawyers, the delegates for the most part were wealthy individuals. This fact has caused some historians to contend that the framers' property-conscious attitude reflected their economic self-interest. Although one can never entirely dismiss economic motives, such an analysis seems unduly simplistic, as it does not give enough attention to the philosophical climate that helped define the framers' constitutional outlook. (pp. 42-43)

The historians Ely mentions (but doesn't name, although I'm familiar with a few of them) obviously subscribed to the notion that a dichotomy must exist between a value one fights for and one's potential, personal gain from that value. Therefore, the motives of the framers are dubious and questionable. The fight for liberty must be "platonic," and not sullied by any selfish personal gain one might enjoy in a state of liberty. Enemies of liberty in later periods exploited that "platonic" division and championed the denigration of property rights. Again, altruism rears its ugly head.  

Consistent with the Whig tradition, the framers did not distinguish between personal and property rights. On the contrary, in their minds, property rights were indispensable because property ownership was closely associated with liberty. "Property must be secured," John Adams proclaimed in 1790, "or liberty cannot exist." (p. 43)

Again, the absence of a distinction between "personal" and "property" rights in the premises of the framers underscores Rand's dictum about the integration of political, economic and intellectual freedoms. Only the framers never quite put it so succinctly. One almost wishes she had attended the Convention to instruct them on that point.

Part Two of the review of James Ely's book will continue with "Property Must Be Secured," move on to the antebellum period, note what changes occurred during and after the Civil war in regards to property rights, reveal the role of the advocacy of "states' rights," and discuss the gradual but inexorable near-destruction of property rights in the 20th century.

The Guardian of Every Other Right: A Constitutional History of Property Rights, by James W. Ely, Jr .. New York: Oxford University Press, 2007. 216 pp.

*From "For the New Intellectual," in For the New Intellectual: The Philosophy of Ayn Rand, by Ayn Rand. New York: Signet, 1963. 224 pp.  p. 25.

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