Protections for Private Property

…the theory of the Communists may be summed up in the single sentence: Abolition of private property.

Manifesto of the Communist Party
Karl Marx, 1848

PRINCIPLES

Government exists to protect property. The Founders of America understood it that way and wrote a constitution to accomplish that goal. John Adams in 1787 defined a republic as “a government, in which the property of the public, of people, and of every one of them was secured and protected by law.” James Madison in 1792 wrote an essay entitled “On Property,” stating “that alone is a just government, which impartially secures to every man whatever is his own.”

These principles regarding the purpose of government had deep philosophical roots. Long before the founding of the American Republic, John Locke in 1689 wrote in his Second Treatise of Government, “The great and chief end therefore, of men uniting into Commonwealths, and putting themselves under Government, is the Preservation of their property.” Indeed, Locke believed that government existed to enforce Man’s natural right to keep and use his property. He wrote that the power of the government is “the joint power of every member of society” and “no one has an absolute arbitrary power . . .[to] take away the life or property of another.” Thus, government could not expand its power to take property; it lacks the authority to violate natural rights.

Locke’s emphasis on “consent” is of paramount importance. To overlook man’s natural right of consent grants government extraordinary and arbitrary power over the individual and his property, for which he willingly has entered into a social compact. Locke writes, “the supreme power cannot take from any man any part of his property without his own consent. For the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property, without which they must be supposed to lose that by entering into society which was the end for which they entered into it.”

With regard to the legislative transfer of the power to make laws to the non-elected, Locke wrote quite clearly stating, “The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others….nobody else can say other men shall make laws for them; nor can they be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.” In our day, elected legislatures too easily transfer their power to appointed bodies such as regional boards, housing authorities, transportation authorities and even foreign corporations. When government is allowed to delegate its authority to unelected boards, hence taking the power away from the peoples’ representatives and giving it to those whom we cannot hold accountable, our private property rights and every form of liberty is at risk.

The founding principles embodied in Locke’s writings were enshrined by George Mason in his Virginia Declaration of Rights (June 12, 1776) and became the basis for Thomas Jefferson’s Declaration of Independence (July 4, 1776) and of James Madison’s Federalist No. 10 (November 23, 1787) and ultimately the Bill of Rights (December 15, 1791).

The Virginia Convention meeting in Williamsburg on May 6, 1776 formed a committee headed by George Mason to draft a bill of rights and a constitution for Virginia. Among Mason’s propositions for his ‘first draft’ were “That no part of a Man’s Property can be taken from him, or applied to public uses, without the Consent of himself, or his legal Representatives; nor are the People bound by any Laws, but such as they have in like Manner assented to for their common Good” and “That in all controversies respecting Property, and in Suits between Man and Man, the ancient Tryal by Jury is preferable to any other, and ought to be held sacred.” For the Founders, the ideas of “Consent” and being “bound by Laws” to which they have assented and, further, being entitled to a “Trial by Jury” in the event of a dispute involving property reveals in an extraordinary way how government was intended to serve the people. Inherent, therefore, in the application of “public use” involving the taking of a man’s property, according to Mason, is Consent, without which, he is entitled to a trial by jury.

Mason’s propositions (May 20-26) were adopted by the Committee (May 27) and later by the Virginia Convention (June 12). Man’s rights to private property, which evolved from Natural Law, were invoked by Locke and adopted by the Founders. These principles having devolved into the Fifth amendment of the Bill of Rights stating that No person shall “be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”

These principles are not merely abstract theories. They have profound practical implications. They are the foundation of American prosperity. From a political perspective, maintaining the sacred right to property prevents political chaos. The Founders believed that if government could take property from one person and give it to another, government would spend all of its time redistributing property to please political supporters. James Wilson, an author of the Constitution, wrote that without recognition of private property, “the tranquility of society would be perpetually disturbed by fierce and ungovernable competition for the possession and enjoyment of things, insufficient to satisfy all, and by no rules of adjustment distributed to each.”

Recognition and protection of these rights is essential for the growth of commerce. From a commercial perspective, these rights are essential to commerce and industry. As James Wilson also wrote, “What belongs to no one is wasted by everyone. What belongs to one man in particular is the object of his economy and care.” Alexander Hamilton wrote in 1774 in his essay Defence of the Funding System that “True liberty, by protecting the exertions of talents and industry, and securing to them their justly acquired fruits tend more powerfully than any other cause to augment the national wealth.” (emphasis added).

These principles of property also played an important role in abolishing slavery. The promise of the Declaration of Independence that “all men are created equal” and that each is entitled to “life, liberty, and the pursuit of happiness” was inconsistent with, as abolitionist Senator Charles Sumner pronounced “the appropriation of all the toil of [slavery’s] victims, excluding them from that property in their own earnings, which the law of nature allows, and civilization secures.”

GOALS

  1. The object of today’s exertions must be to prevent the further erosion of property rights. The 20th century was an era of increasing disregard of property rights. The Progressive movement of the first half of the century led to many government actions that restricted property and other associated rights through compulsory governmental programs, such as Prohibition, the antitrust laws, the graduated income tax, restricting development on federal lands, and local zoning laws. The Progressive movement culminated in the New Deal, which gave vast authority to the government to dictate how individuals used their own property.
  2. The courts also failed to protect property rights, deferring to legislatures and ignoring constitutional protections. The courts generally found that legislative approval of restraints on property satisfied constitutional requirements. The courts seemed to forget that the constitutional provisions protecting property were intended to protect property from the majoritarian interests of, and influences on, the legislature.
  3. In Berman v. Parker a 1954 landmark decision, the Supreme Court allowed the government to take a department store in a blighted neighborhood for redevelopment, even though the department store itself was not blighted. The Court concluded that a legislative determination to redevelop the entire area, including even an unblighted department store, satisfied constitutional requirements. The Supreme Court relied heavily on that case in deciding both Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) and Kelo v. City of New London, 545 U.S. 469 (2005). Stare decisis, the reliance on decided cases or precedent, hardly provides justification for the Court’s decision in Kelo. Following precedent in this way is wrong and runs contrary to the text and original intent of the Framers.

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