If you are anything like me, over the last year, every time you hear rioters or their leftist enablers claim the massive property damage and obscene looting just aren’t a big deal. “They are angry because someone lost their life. That is more important than worrying about stuff and things,” they say. “It’s just property they are destroying and stealing…” If you are anything like me, every time you hear that somewhere deep down inside of you died just a little bit. That’s because you know that all rights, even the right to life itself, is a property right. If you have never considered that before, or your instinctual reaction is that doesn’t make sense, I know where you are coming from. I felt the same way the first time I heard that argument. But by the end of this essay you will clearly understand how that can be.
I want to discuss what property rights are, and their meaning and purpose in law. But first I want to describe what property rights are not. Because both the left and the right tend to see the classical liberal view that all rights are property rights as a kind of materialistic, pedantic and one-dimensional concept, so let’s tackle that prejudice before we discuss what the classical liberal view of property rights is.
The left (and even the socially conservative right) seem to believe that libertarians believe property rights no matter what. Property rights no matter what. That’s because people acting as self-owners and respecting their self-ownership requires a kind of laissez-faire, pro-property rights regime (even if it immiserates the poor and leads to widespread poverty and misery).
But you would be hard pressed to find a libertarian who actually supports such a position. I’m a strong advocate of property rights. But, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property rights in large part because they think this will tend to make people’s lives richer and easier.
As a matter of moral theory, it’s a bad idea to defend absolute property rights regardless of consequences. Doing so is both an intellectually weak argument and unlikely to persuade anyone not already strongly sympathetic to libertarianism. Defending absolute property rights leads to absurd conclusions and potentially indefensible hypotheticals. Such as the following example I poached from David Friedman: If I have an apartment on the fifteenth floor of an apartment complex and one night I trip and fall off the balcony, but I am able to grab the railing of the apartments right below me on the fourteenth floor but the person who lives there says, “That’s my railing get off my property,” a belief in absolute property rights gives me no option but to let go of his balcony and fall to my death.
I explain that so I can say this: do not mistake my point that all rights are property rights as characteristic of the largely unfair libertarian caricature of property rights no matter what.
Let’s first establish a working definition of property: that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.
With that, let’s establish a set of first principles. For me the only place to start is John Locke and Lockean natural law. This is essentially a moral code of law that apply to everyone. Locke said:
Reason, which is that Law, teaches all Mankind, who would but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions.
Locke envisioned a rule of Law:
Have a standing Rule to live by, common to every one of that Society, and made by the Legislative Power erected in it; A Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another Man.
Locke established that private property is absolutely essential for liberty:
Every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour [sic] of his Body, and the Work of his Hands, we may say, are properly his.”
The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.
Locke believed people legitimately turned common property into private property by mixing their labor with it, by improving it. Marxists liked to claim this meant Locke embraced the labor theory of value, but he was talking about the basis of ownership rather than value.
These rights are natural in that we have them because of what we are and not because they were given to us by someone. But just saying we have rights isn’t the same as giving an argument for why we have them. To do the latter, we’ll draw on Immanuel Kant’s famous Categorical Imperatives, specifically its second formulation:
Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.
Humans are by nature rational beings possessing dignity. This dignity prevents us from being used by others, and hence we have rights against such use. People “may not be sacrificed or used for the achieving of other ends without their consent, Individuals are inviolable.”
From this we move to a basic principle of self‐ownership. I own myself and thus have a right to do with myself as I please. You own yourself and have the same right. I don’t own you and you don’t own me. This gives each one of us rights not only to ourselves, but also to the fruits of our labor. These are rights to be free from certain acts by other people (assault, theft, enslavement, etc).
There is a good reason why in Aldous Huxley’s Brave New World (a novel whose dystopian and totalitarian government is much more similar to our lived experience than the default work of Orwell’s Nineteen Eighty-Four —brilliant and prophetic though Orwell was) Huxleyian totalitarian control doesn’t come from an abject fear of the consequences people face if they dare rebel against their slavery as tends to typify Orwellian dystopic worlds. Huxley envisions a world where technocratic social engineering is used in such a way as to make people love their slavery. A common slogan people reflexively repeat in brave new world is that “Everyone belongs to everyone else.”
Our protagonist Bernard resists all the pressures and temptations to give into chemically induced pleasure and the collective activities of social control by suppressing human differences that can cause you to lose your identity and agency. He exclaims:
“I’d rather be myself,” he said. “Myself and nasty. Not somebody else, however jolly.”
The idea that even the most intangible human rights such as freedom, identity and agency, if these are things that can be lost or can be taken from us, it does not suggest that these are things we claim possession of and exercise control over, in exclusion of every other individual.
If rights such as life, liberty, and the pursuit of happiness hold the same definition we give to property rights, doesn’t that necessitate a recognition that those rights are rights that fall under the umbrella of rights that an individual can be said to have a property in? Consider how we talk about someone who is a murder victim. We say that murderer took the life of his victim. Again, we see life as a thing which we possess and which can be taken and possessed by someone else who did not have a claim to it. In moral philosophy this typifies a matter known as distributive justice which itself is a doctrine of establishing property rights. With that general understanding of property rights and their relationship to the protections that we can find in natural law, let’s talk about the role of property rights in constitutional law specifically.
Historical Property Rights
Progressives in the twentieth century have in large part aimed at turning the American people away from their traditional attachment to property rights. A salient feature of their efforts has been the promotion of new opinions concerning the American Founders and their appreciation for the importance of those rights.
Within intellectual circles, progressives have tended both to acknowledge that the Founders attached great significance to property rights and to denigrate them precisely for this attachment. The harsher critics, beginning with Charles Beard, ascribed to the Founders selfish motives in establishing a constitution that provided generous protections for private property; his claim was that the principal goal of such a constitution was to protect the wealthy elite against the democratic majority.
Beard’s assertion has been coupled with the claim made by other scholars that not only were the Founders selfish, but they also understood all human beings to be primarily selfish, acquisitive creatures. In his influential book, The American Political Tradition, Richard Hofstadter wrote:
They thought man was a creature of rapacious self-interest, and yet they wanted him to be free—free, in essence, to contend, to engage in an umpired strife, to use property to get property. They accepted the mercantile image of life as an external battleground, and assumed the Hobbesian war of each against all.
Milder “liberal” critics tended to focus their criticism not on the selfishness of the Founders, but on the infeasibility of their system in modern America. In his book, The Promise of American Life (1909), Herbert Croly, the founder of The New Republic, argued that the Founders’ individualism had been appropriate to an agrarian pioneering nation, but was destructive to the modern industrial state, which needed vigorous direction from the national government. He criticized his contemporaries who failed to realize “how thoroughly Jeffersonian individualism must be abandoned for the benefit of a genuinely individual and social consummation.”
Outside intellectual circles, however, the popular rhetoric of the progressives has not openly attacked the Founders for their attachment to property rights; rather, it has denied they had such an attachment. Franklin Roosevelt, eager to convince the public that the New Deal was not so new, but actually a “fulfillment of old and tested American ideals,” often argued publicly that the Founders did not understand property rights to be as important as other individual rights. In one campaign speech, Roosevelt remarked that Jefferson had distinguished between the rights of “personal competency” (such as freedom of opinion) and property rights; while the former were inviolable, the latter should be modified as times and circumstances required.
Property Rights Paramount
A reading of the important founding documents, however, shows clearly that the Founders held property rights to be as important as other human rights. In fact, at times they insisted that the right to acquire and possess private property was in some ways the most important of individual rights.
Only one who ignores the history of the founding period could deny that the men of that era held the right to private property in high esteem. Indeed, it could be said that the central question of principle that animated the movements that led to independence and the framing of the Constitution concerned property rights; for it was a threat to property rights, in the form of taxation without representation that initiated the crisis that led eventually to independence. Moreover, it was largely the undermining of property rights by state legislatures under the Articles of Confederation that prompted the framing of a new national constitution that would protect the individual right to property against infringement by national and state government power. (The state abuses of power during the 1780s included the cancellation of private debts either directly or indirectly, especially through deliberately inflationary policies and the emission of worthless paper money as legal tender.)
So insofar as the Founders made any distinction between property rights and other individual rights, they insisted that property rights were at least as important as personal rights. In Federalist 54, James Madison stated tersely:
Government is instituted no less for the protection of the property than of the persons of individuals.
As Madison later elaborated, property rights are as important as personal rights because the two are intimately connected. The right to labor and acquire property is itself an important personal right and entitled to government protection; and the property acquired through the exercise of this personal right is entitled, by derivation, to an equal protection. As he put it in his “Address at the Virginia Convention”:
It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.
If property rights were understood to be as important as other rights, how are we to account for the failure of the Declaration of Independence to mention the word and its conspicuous substitution of the phrase “pursuit of happiness,” thus altering the traditional Lockean formula, “life, liberty, and property”? Does this not suggest at least a subordination of property rights to other rights? Indeed, some contemporary scholars have argued that the language of the Declaration manifests the Founders’ intention to subordinate private property to happiness, understood as public happiness. Yet the founding documents make abundantly clear that their authors understood the right to property to be an integral part of the unalienable right to liberty. The authors of the Virginia Bill of Rights, the immediate antecedent to the Declaration, made this explicit. The first article of that charter states that all men “have certain inherent rights . . . namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” (emphasis added).
Taxation Without Representation
Because Americans understood the right to property as part and parcel of the right to liberty, they viewed taxation without representation—a violation of their economic freedom—as an attack on the whole of their freedom. The Stamp Act Congress, called to protest the first of those taxes, declared that “it is inseparably essential to the freedom of a people . . . that no taxes should be imposed on them, but with their own consent.”
In a similar vein, Jefferson wrote:
Still less let it be proposed that our properties within our own territories shall be taxed or regulated by any power on earth but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.
In fact, American authors continually insisted that such taxation, however small the amount, on principle was tantamount to slavery. As one patriot, Silas Downer, affirmed, if the colonists yielded to the tax power of the British Parliament, this would place them “in the lowest bottom of slavery.” He continued:
For if they can take away one penny from us against our wills, they can take all. If they have such power over our properties they must have a proportion able power over our persons; and from hence it will follow, that they can demand and take away our lives, whensoever it shall be agreeable to their sovereign wills and pleasure.
To make a claim on the economic liberty of individuals or their community is to make a claim on their entire freedom. In the end, no real distinction could rightfully be made between personal and economic liberty. Accordingly, the Founders understood unjust taxation as not merely a financial or economic issue but an issue with implications for the whole of human liberty.
The Founders’ attachment to economic freedom was in no way, in their understanding, opposed to the principle of equality. As Lincoln repeatedly emphasized, the equality proclaimed in the Declaration is not an equality in all respects:
[The] authors of that notable instrument…did not mean to say all were equal in…intellect, moral developments, or social capacity. They defined with tolerable distinctiveness, in what respects they did consider all men created equal—equal in ‘certain unalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said and this they meant.
Moreover, not only did the Founders’ understanding of equality not include all kinds of equality (such as the equality of economic condition championed by the progressives), their conception of human equality necessarily excluded equality of condition. They believed that everyone had an equal right to exercise his individual abilities to acquire property, abilities that were by nature unequal, and that the equal right to employ unequal talents would necessarily lead to economic inequality. As Alexander Hamilton stated at the Constitutional Convention:
It is certainly true that nothing like an equality of property existed: that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself.
Not only did the Founders affirm that property rights were as important as other personal rights, at times they insisted that property rights represented the most important of rights. In Federalist 10, James Madison wrote that the protection of “the faculties of men, from which the rights of property originate . . . is the first object of government.” In what way did the Founders understand the protection of the acquiring faculties to be the first function of government? Contrary to the assertions of authors such as Richard Hofstadter, it was not because they believed that acquiring property was the main or most important human activity. Men who willingly risked their “lives, fortunes, and sacred honor” for the sake of their country’s freedom were obviously not the type who considered the accumulation of material goods to be the end of human existence.
The lesson that Madison and the other Founders learned from history, especially their own, is that the first object of government is the protection of property rights. On one hand, a foreign faction, the British Parliament, had begun its encroachment on colonial rights with an assertion of taxation power over the property of the colonists. On the other hand, after independence, Americans saw that a domestic faction, namely, a passionate majority operating in state legislatures, could also threaten individual rights; and the first right to be undermined was the right to property, through the pursuit of deliberately inflationary policies and the cancellation of private debts. From such experience, Madison and other leaders learned that statesmen should view property as the most important right because it is most often the first object of a faction’s hostility.
Constitutional Protection of Property
It is true that for the most part our Founder’s did not fully share the Lockean conception of property rights, that being a paradigmatic view of property rights as the source from which all other rights derive.
Because of the relative vulnerability, property rights were afforded the most extensive guarantees in the Constitution. Among the specific limitations placed on congressional power in Article I, most either directly or indirectly were designed to protect property rights. These included: the restrictions on direct taxes, the ban on export duties, the prohibition on preferential treatment of different ports, and the ban on taxation of interstate commerce. These guarantees were later supplemented by the Fifth Amendment’s due process clause and the ban on the national government’s taking property without just compensation (later made applicable to state governments by the Fourteenth Amendment).
The original Constitution provided even more extensive guarantees for property rights against infringement by the state legislatures. These included the ban on state duties on imports and exports, as well as prohibitions on the coinage of money, the emission of bills of credit, the establishment of anything other than gold and silver as legal tender, and the passing of any law impairing the obligations of contracts. Moreover, the bans on state bills of attainder and ex post facto laws were designed to protect property rights more than personal rights. Finally, besides the specific guarantees, the framers of the Constitution established, with the use of such institutional devices as checks and balances, a government designed for stability—a feature they promoted as most friendly to economic freedom.
The second reason that property rights were viewed as primary was that they served as a practical guarantee for other rights. In effect, not only were property rights the most vulnerable, they were also the first line of defense for the other rights. According to the Founders, property was not only a right in itself, but also a means to the preservation of other rights. Economic freedom was understood to serve the other personal freedoms in two ways. First, property meant practical power. An economically independent people were best able to maintain their political independence. Indeed, the ownership of property was of immense importance to the practical independence not only of the people as a whole, but also of the individual citizen. As Edmund Morgan wrote in The Birth of the Republic:
[The] widespread ownership of property is perhaps the most important single fact about Americans of the Revolutionary period…Standing on his own land with spade in hand and flintlock not far off, the American could look at his richest neighbor and laugh.
Moreover, the personal economic independence afforded by private property instilled in the citizenry a spirit of personal independence, a virtue absolutely necessary to a self-governing people. Economic dependence, on the other hand, “begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition,” Jefferson observed. The virtue of the people that comes from personal independence is important because, as Jefferson noted:
It is the manners and spirit of a people which preserve a republic in vigor. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution.
It was because the Founders understood property rights to be absolutely essential to republican virtue that many of them favored restricting the suffrage to property holders. One will look in vain for any statement by the leaders of that generation claiming that those without property were inferior in their unalienable rights or their fundamental human dignity. What many (not all) of the Founders did believe, rightly or wrongly, was that a state in which the privilege of voting was restricted to property holders was the best means to ensure a government that protected the basic rights of all, rich and poor. At the constitutional convention, John Dickinson spoke for many present in arguing that “freeholders”—or landowners—(who constituted the vast majority of the people) were “the best guardians of liberty.”
Those without property were thought to be far too dependent on those with it to be able to exercise an independent vote. Gouverneur Morris argued:
Give the votes to people who have no property, and they will sell them to the rich, who will be able to buy them…The man who does not give his vote freely is not represented. It is the man who dictates the vote.
Although ultimately, the convention decided not to establish national requirements for the suffrage and left it to the discretion of state governments, the sentiments expressed during the convention debates show why many states retained property qualifications for voting; for many leaders understood a property-holding citizenry to be the best guardians of freedom.
Whatever may be the merits of the extension of the suffrage only to property owners, this much is clear: the Founders’ opinions in this regard manifest clearly that they did not hold property rights in low esteem. As we have seen, they viewed the right to property to be not only as important as other human rights, but in some respects as the most important human right. Economic freedom was a most important freedom, and its vulnerability to factional hostility required that it be afforded extensive constitutional guarantees. Paradoxically, this most vulnerable of freedoms was also understood to be the best practical guarantee of the other freedoms; for the private ownership of property provided not only real power to the citizens, it also instilled in them that virtue of self-reliance and self-governance essential to a politically self-governing people.
Declaration of Independence
Most constitutional scholars, classical liberal philosophers and revolutionary era scholars of American history will fully support the fact that all reasonable evidence points to a belief by the Founders that property rights considered them as paramount and on equal footing with individual liberty. Both liberty and property rights were a product of natural law.
But what about my assertion that all rights are property rights? I have surprisingly not yet found Nowhere in my long term study of these topics over the years have I found a scholar who will make the claim this concept can be empirically tied to our founding documents.
All we have to do is what we should have been doing all along, interpreting the founding documents that make up our organic laws as legal documents, since that is precisely what they are. While it’s a fair point to say the Declaration of Independence is not binding law, the same way our Constitution is binding law, it does make sense when we approach the most fundamental documents pertaining to constitutional law with the fundamental approach our Founder’s took when drafting them. That one should always start with first principles. As for me, I can’t think of a better way to approach that task than how the great constitutional scholar and classical liberal philosopher Randy Barnett suggests:
That the Constitution is not the law that governs us, it is the law that governs those who govern us.
Likewise the first principles of interpretation of the Declaration of Independence is that first come rights, then comes government.
So, the Declaration of Independence is the charter of rights we had before government, which government was then created to protect, and can then be converted into a Constitution whose rules may in combination be used to limit the power of government. That way it performs those functions that it ought to perform, but doesn’t engage in those excesses that those to whom we delegate power will inevitably seek to usurp.
So, with all that in mind, let’s approach the words of our Declaration of Independence in light of its nature as a legal document. Specifically, the line we have been focusing on in the document that states our conception of natural rights:
We hold these truths to be self-evident, that all men are created equal, and are endowed by their creator with certain unalienable rights. That among these are life liberty and the pursuit of happiness.
While you can certainly find loose definitions of the term unalienable as a right that cannot be surrendered, sold or transferred, it does have a very particular meaning in English Common Law. Because this was a document drafted by and for government in common law jurisdictions it should be interpreted the way all legal documents are properly interpreted, by applying to them the meaning it would have been understood to have at the time it was drafted.
“Alienability” is derived from property law. When we turn to the fundamental treatise on the common law, Blackstone’s commentaries on the common law says the following about the concept of alienability:
In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Most property is alienable…Some object are incapable of being regarded as alienable property and whose property rights are to be regarded as inalienable, such as people and body parts.
The significance of this is immediately apparent. The only thing that can be called alienable or inalienable must by definition be property and anything endowed with an inalienable right must, by definition be endowed with a property right. This means life, liberty and the pursuit of happiness no matter how they are individually defined or to what they are particularly applied must be defined as a kind of property and to them must be applied property rights.
This also explains why we can acknowledge Jefferson replaced the concept of property rights with the pursuit of happiness without somehow subordinating or denigrating property as something less than a natural right. Because an assertion that a right to property is a property right is a tautology.
Madison Essay on Property
I want to close with an excerpt from James Madison’s 1792 essay on property rights, which arguably constitutes the most poignant argument for this article’s assertions I have yet to find:
This term 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 everything to which a man may attach a value and have a right; and which leaves to everyone 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. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Hindustan, under appellations proverbial of the most complete despotism.
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 keenness 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.