SIX
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LIBERTY AND PROPERTY
I HAVE WRITTEN OF a humane society as ordered around natural law (including external truths and moral order), unalienable rights (including individual liberty and justice), and the institution of constitutional republicanism (including order and consent). These are among the essential doctrines and principles of the American founding. They are a function of each other and essential elements of each other. And yet, there is a remaining indivisible ingredient without which they are all imperiled—private property rights and, more broadly, what today is called market capitalism. This is a subject that pervades philosophy, including that which has been discussed throughout the book. Thus far, it has been addressed most directly but not exclusively in the context of Marx’s material historicism, but it obviously permeates the writings of the other thinkers as well.
In Liberty and Tyranny I explained that “[p]rivate property is the material manifestation of the individual’s labor—the material value created from the intellectual and/or physical labor of the individual, which may take the form of income, real property, or intellectual property. Just as life is finite, so too is the extent of one’s labor. Therefore, taxation of private property, or the regulation of such property so as to reduce its value, can become in effect a form of servitude, particularly if the dispossession results from illegitimate and arbitrary state action.”1
In The Second Treatise of Government, John Locke asserted: “[The government] 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 into society, which was the end for which they entered into it, too gross an absurdity for any man to own.”2 William Blackstone, in his Commentaries on the Laws of England, explained: “So great . . . is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of them, to do this without the consent of the owner of the land.”3
In 1787, in his essay Defence of the Constitutions of Government of the United States, John Adams explained the importance of protecting private property as a right from the tyranny of undiluted democracy:
Suppose a nation, rich and poor, high and low, ten millions in number, all assembled together; not more than one or two millions will have lands, houses, or any personal property; if we take into the account the women and children, or even if we leave them out of the question, a great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.4
James Madison provided an even more comprehensive explanation about the relationship between liberty and property; that property is a right in one’s self, secured for the individual and by society through constitutional republicanism. In 1792, Madison wrote:
This term [property] in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. Where there is an excess of liberty, the effect is the same, tho’ from an opposite cause.
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
According to this standard of merit, the praise of affording a just securing to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.
More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. . . .
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favor his neighbor who manufactures woolen cloth; where the manufacturer and wearer of woolen cloth are again forbidden the economical use of buttons of that material, in favor of the manufacturer of buttons of other materials!
A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the kee
nness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.
If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States.
If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.5
In “one’s self” Madison was speaking of individualism and the individual’s unalienable rights, of which property per se and property in its broader context are both consequential and imperative. In fact, it is impossible to delink the principle of property rights from individual rights and liberty generally.
F. A. Hayek noted the distinctions between the two kinds of individualism addressed earlier in this book—that is, the real individualism associated with individual liberty and the so-called individualism hawked by philosophers like Rousseau and modern progressives, in which the individual is contorted and subsumed by the collective. In his book Individualism and Economic Order (1949), Hayek explained that “while the design theories necessarily lead to the conclusion that social processes can be made to serve human ends only if they are subjected to the control of individual human reason, and thus lead directly to socialism, true individualism believes on the contrary that, if left free, men will often achieve more than individual human reason could design or foresee. This contrast between the true, antirationalistic and the false, rationalistic individualism permeates all social thought. But because both theories have become known by the same name . . . all sorts of conceptions and assumptions completely alien to true individualism have come to be regarded as essential parts of its doctrine.”6
Like Adams, Hayek argued that rather than freeing the individual, the scientism, historicism, and progressivism of those who seek to redesign society cannot possibly succeed in producing an economic utopia, no matter how smart the masterminds may be or think they are. “[I]t is an indisputable intellectual fact which nobody can hope to alter . . . [that is,] the constitutional limitation of man’s knowledge and interests, the fact that he cannot know more than a tiny part of the whole of society and that therefore all that can enter into his motives are the immediate effects which his actions will have in the sphere he knows.”7
Moreover, individual liberty is impossible if the governing goal is the pursuit of economic egalitarianism and social sameness. Individuals are unique in myriad ways. For the Founders, equality meant equal justice and equality under the law, not the uniformity of men and conformity to centralized plans and rules. Hayek explained: “[O]nly because men are in fact unequal can we treat them equally. If all men were completely equal in their gifts and inclinations, we should have to treat them differently in order to achieve any sort of social organization. Fortunately, they are not equal; and it is only owing to this that the differentiation of functions need not be determined by the arbitrary decision of some organizing will but that, after creating formal equality of the rules applying in the same manner to all, we can leave each individual to find his own level. There is all the difference in the world between treating people equally and attempting to make them equal. . . .”8
Therefore, as Madison, Adams, and the other Founders universally understood, the individual can best exercise and enjoy his unalienable rights, and the civil society is best preserved if not improved, through a constitution that establishes a republican form of governance with distinct limits and boundaries. Hayek explained: “While the theory of individualism has thus a definite contribution to make to the technique of constructing a suitable legal framework and of improving the institutions which have grown up spontaneously, its emphasis . . . is on the fact that the part of our social order which can or ought to be made a conscious product of human reason is only a small part of all the forces of society. . . .”9
Hayek also wrote that unrestrained “democracy” or majority rule or populism can descend into mobocracy, anarchy, and, ultimately, some form of tyranny. “There are two more points of difference between the two kinds of individualism which are also best illustrated by the stand taken by Lord Acton and de Tocqueville by their view on democracy and equality towards trends which become prominent in their time. True individualism not only believes in democracy but can claim that democratic ideals spring from the basic principles of individualism. Yet, while individualism affirms that all government should be democratic, it has no superstitious belief in the omnicompetence of majority decisions, and in particular it refuses to admit that ‘absolute power may, by the hypothesis of popular origin, be as legitimate as constitutional freedom.’ It believes that under a democracy, no less than under any other form of government, ‘the sphere of enforced command ought to be restricted within fixed limits’; and it is particularly opposed to the most fateful and dangerous of all current misconceptions of democracy—the belief that we must accept as true and binding for future development the views of the majority. While democracy is founded on the convention that the majority view decides on common action, it does not mean that what is today the majority view ought to become the generally accepted view—even if that were necessary to achieve the aims of the majority. On the contrary, the whole justification of democracy rests on the fact that in course of time what is today the view of a small minority may become the majority view. . . .”10
Hayek condemned the progressive ideology as intellectually supercilious, economically destructive, and factually impossible. Furthermore, he feared that once it took hold in a society, it might become impossible to reverse course. “The unwillingness to tolerate or respect any social forces which are not recognizable as the product of intelligent design, which is so important a cause of the present desire for comprehensive economic planning, is indeed only one aspect of a more general movement. We meet the same tendency in the field of morals and conventions, in the desire to substitute an artificial for the existing languages, and in the whole modern attitude toward processes which govern the growth of knowledge. The belief that only a synthetic system of morals, an artificial language, or even an artificial society can be justified in an age of science, as well as the increasing unwillingness to bow before any moral rules whose utility is not rationally demonstrated, or to conform with conventions whose rationale is not known, are all manifestations of the same basic view which wants all social activity to be recognizably part of a single coherent plan. They are the results of the same rationalistic ‘individualism’ which wants to see in everything the product of a conscious individual reason. They are certainly not, however, a result of true individualism and may even make the working of a free and truly individualist system difficult or impossible.” Hayek then warned: “Indeed, the great lesson which the individualist philosophy teaches us on this score is that, while it may not be difficult to destroy the spontaneous formations which are the indispensable bases of a free civilization, it may be beyond our power deliberately to reconstruct such a civilization once these foundations are destroyed.”11
Does this mean there should be no occasion for governmental intervention? Of course not. However, as di
scussed earlier in relation to negative and positive liberty, there is intervention for the purpose of domination and state expansion, and intervention for the purpose of securing true individualism and proper order. This would also apply to certain economic considerations and conditions, such as the vitality of market competition.
Hayek argued: “It is important not to confuse opposition against this kind of [scientific] planning with a dogmatic laissez faire attitude. The [classical] liberal argument in favor of making the best possible use of the forces of competition as a means of coordinating human efforts, is not an argument for leaving things just as they are. It is based on the conviction that, where effective competition can be created, it is a better way of guiding individual efforts than any other. It does not deny, but even emphasizes, that, in order that competition should work beneficially, a carefully thought-out legal framework is required and that neither the existing nor the past legal rules are free from grave defects. Nor does it deny that, where it is impossible to create the conditions necessary to make competition effective, we must resort to other methods of guiding economic activity. Economic liberalism is opposed, however, to competition being supplanted by inferior methods of coordinating individual efforts. And it regards competition as superior not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority. Indeed, one of the main arguments in favor of competition is that it dispenses with the need for ‘conscious social control’ and that it gives the individual a chance to decide whether the prospects of a particular occupation are sufficient to compensate for the disadvantages and risks connected with it.”12