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.

  • Charles Geisler, sov.

    I find it interesting that more people have not included reference to James Otis. John Adams, in my mind, brought the statement of rights to life, liberty and property to the composition of the declaration of independence.

    He was at Otis’s five hour defence against the writs of assistance and recored it. Otis also said that every man is his own soverign.

    Otis also was the one who made the statement that taxation without representation is tierany.

  • writeby

    Very nicely done, Ed.

    A right–a moral principle bridging ethics & politics–is a kind of abstract ‘deed’ indisputably establishing an individual’s morally sanctioned ownership. As an instrument of bond, this ‘deed’ declares inseparable (inalienable) the union between an individual and his property, whether his life, mind & liberty or their physical manifestations: his person & his personal and real property. To attack private property, then (whether person, personal or real), is not only to attack the concept of right, but also its foundation: morality itself.

    “Before Patrick Henry could utter his immortal words “Give me liberty or give me death,” someone had to say: “Give me 2 dollars—or 2 pounds, or 2 francs, or 2 clams—for that sack of flour.” One’s livelihood and one’s liberty are a single issue, but death is still the only alternative.

    “Many have derided America’s attitude of “business as usual.” But without “business as usual,” the Bill of Rights would find no market. Without the freedom to support one’s life as one sees fit, a man would have no right to speak out as he sees fit; no freedom to write what he sees fit; no right to worship (or to not worship) as he sees fit. There would be no contractual—i.e., legal—requirement that governmental force be restrained by individual rights; there would be no such awareness that such rights are owned by the individual.

    “John Adams called this ‘the property of rights.'”

    “Thus, the concept of individual rights was born out of the concept of property rights; and the concept of property rights was born out of the recognition that each individual is the sole owner of his life. Economic freedom, then, is a necessary prerequisite to political freedom. Without the former, the latter is impossible … ” –“The Reality of the American Dream,” (c)1999; me.

  • IceTrey

    Libertarian Bill of Rights

    Article 1
    No person may initiate the use of force, threats of force or fraud against any other person’s self or property.

    Article 2
    Force may be used against those who violate Article 1.

    Article 3
    No exceptions shall exist for Articles 1 and 2.

  • writeby

    Floating political abstractions without an ethical base.

    1. Man’s life (as man qua man, i.e., rational being) is the moral standard.

    2. A free nation (because a free nation, by it’s very nature, places man’s life (either explicitly or implicitly) as the moral standard) is morally superior to a slave state (because a slave state, by it’s nature, does not; a slave state is anti-human life).

    3. Therefore, a free nation (after a formal declaration of war, which may not be made public but must be done within the Constitution) has the moral right to wipe out any slave state, preemptively–if that state poses a threat (w/o actually articulating one) to the free nation.

    Examples (*if* it was determined these nations posed a credible threat to the USA):

    1850s US South
    1939 Germany
    1940 Japan
    1950 USSR
    1950 Arab states nationalizing US & European oil wells
    1960 Red China
    1979 Iran
    1993 Iran
    2001 Iran, Saudi Arabia
    2014 N. Korea

  • IceTrey

    All I see is rationalization for the initiatory use of force. If we went to war with a slave state I assume the soldiers on the other side would all be slaves so in order to free the slaves you want to kill them. How nice of you.

  • writeby

    “All I see is rationalization for the initiatory use of force.”

    And that’s all you will see–which is your own rationalism reflecting back at you–until your floating abstractions find an ethical base.

    Libertarianism isn’t a solution; it’s an epitaph.

  • IceTrey

    The ethical basis for it is the human right to negative liberty. BTW are you saying I could make a better argument by being irrational?

  • Threnody

    The position that each man ‘ought’ be utterly free EXCEPT to infringe forcibly on other men’s rights, requires an explanation. Every statement of what men ‘ought,’ requires an explanation. A proper ‘ought’ for man, requires a truth about man and his real environment, and a judgment these facts will, together with the prescribed action, yield good for the man. And this, takes you right down to the crux of the issue. Are you going to come down on the side of claiming objective values (good) common to every individual man, or no. If you miss here, and try to put choice in front of objective values (an ethical basis or system) in preeminence, you go wrong. In other words, if you make the personal choosing of values a higher value than the reality of man and his universe, then you go wrong. This means that value only has meaning in the context of man, alive as the sort of being he is, in the universe he inhabits. So, for ‘value’ to have meaning, it must start with man’s life. Only then does the stress on freedom rightly come in, as then, it properly fits because then men ‘ought’ be free, and no man ‘ought’ forcibly infringe on other’s rights for an objective *reason* common to every man. The standard of value that *every* man must hold in order to **rationally** defend his own right to *any* value, is the standard that is each man’s life. The truth comes in as an ‘if – then,’ statement. If any individual man is to claim any right *by reason*, then he must hold every individual’s life as the ethical standard. If any individual man wishes to claim right to his own life and values, but deny these to other men, he has and can have no *reason* for this position — only brute force. Frankly, libertarians should not balk at this. They remain perfectly free to argue all of the factual issues past this.

  • writeby

    ‘Rationalism': “Philosophy. The theory that the exercise of reason (sans empirical data) … provides the only valid basis for … knowledge …

    BBT’s Sheldon is an excellent example. When working on his formulas for string theory, he seeks to make the formulas “right.” Here rationalism seeks _internal consistency_ within the formula. IOW, the numbers have to align–never mind what’s actually happening in reality. See the Analytics, e.g., Russell, Whitehead, etc.

    Their premise is that ‘math is reality.’

  • writeby

    PS. “Negative” liberty–“freedom from interference by other people”–is a political principle, not an ethical one. To identify any ethical principle, one must first identify an ethical–moral–standard by which one measures right & wrong, value or vice (anti-value).

    However, even before that, you must ask why men need ethics. IOW, why does man need morality at all?

    Answer here:

    “What is morality, or ethics? It is a code of values to guide man’s choices and actions—the choices and actions that determine the purpose and the course of his life. Ethics, as a science, deals with discovering and defining such a code.

    “The first question that has to be answered, as a precondition of any attempt to define, to judge or to accept any specific system of ethics, is: Why does man need a code of values?

    “Let me stress this. The first question is not: What particular code of values should man accept? The first question is: Does man need values at all—and why?”

    –“The Objectivist Ethics,” The Virtue of Selfishness, 13; Ayn Rand

  • writeby

    “If any individual man wishes to claim right to his own life and
    values, but deny these to other men, he has and can have no *reason* for this position.”

    Context is everything. If those other men rule a slave state (of whatever variant), their objective value is less than the free state.

    Freedom is objectively morally superior to slavery.

    I think that’s what you’re arguing, but, frankly, your prose is a bit (for me) cloudy.

  • Threnody

    Moreso that choice itself can’t be an ethical foundation. I hope the libertarian realizes that reality trumps choice. They need a metaphysics to sit their ‘oughts’ on. From a metaphysics that recognizes the sort of universe we have and what sort of creature Man is, then, you can reason the objective superiority of freedom, but that wasn’t the main point, as I know we agree on freedom.

  • Threnody

    I was trying to gently point at what I think the libertarian error is. I have empathy for them as most of the secular and religious world tells people to disregard their own lives. Still, they error by trying to make volition the foundation of ethics and thus politics. It is as if they skip metaphysics. Frankly, I wish the libertarians to be persuaded by the realization that reality trumps choice. This means that choosing is not good because it is choosing, it is good because the reality and nature of man and his universe makes it so – for man as he is, in the universe that is. It is for this reason that freedom is objectively morally (which includes practically) superior to slavery. However, I was not worried that the libertarian would argue that formulation, but only that they had mixed up, or ignored, why.
    As to the slave country, I agree that that state of affairs or that government is objectively less valuable for men in the sort of universe we have. I would not agree that the tyrant’s lives are objectively less valuable though. I’m not sure if you meant that or not. Your prose there was a bit cloudy to me. The foundation remains the same for all men, even those who deny it. Of course, for that same reason, men rightfully defend their lives against those who would steal them — using reason to determine when and in what way is most likely to succeed, in full context, of course.

  • writeby

    ” I would not agree that the tyrant’s lives are objectively less valuable though. I’m not sure if you meant that or not. Your prose there was a bit cloudy to me. ”

    LOL. Touche’. Morally inferior–in the same way a murderer is morally inferior to an innocent man–with Man’s life as moral standard.

    Never considered the L’s metaphysics. Interesting point. Without a rational one, they’d certainly have no basis for accurately identifying Man’s metaphysical nature, which omission permits them their (erroneous) economics of “anarcho-capitalism.”

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