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Book Review: Liberty, Property, and The Foundations of the American Constitution Edited by Ellen Frankel Paul and Howard Dickman

DECEMBER 01, 1989 by ROBERT W. MCGEE

State University of New York Press, State University Plaza, Albany, NY 12246 • 1989 • 181 pages • $39.50 cloth, $12.95 paper

This book consists of eight essays, written by eight different scholars, and edited by Ellen Frankel Paul and Howard Dickman of the Social Philosophy and Policy Center in Bowling Green, Ohio. The unifying theme is the interrelationship between liberty and property, with special emphasis on how liberty and property were viewed by America’s Founding Fathers.

In the preface, Gordon S. Wood discusses the intellectual atmosphere that existed in the Colonies at the time of the Revolution. Property was seen not so much as a way to aggrandize profits, but as a source of personal independence. Property consisted not only of tangible goods but also of skills and anything else that made a per son independent. At least some of the Constitution’s framers were very much aware of the danger posed by a legislative majority bent on usurping a minority’s property rights. In one of the first Supreme Court cases, Justice Samuel Chase stated that a law exceeds its legislative authority if it takes property from A and gives it to B. Today, such laws are commonplace, and very few people question their validity or even their propriety. How things have changed in 200 years.

Michael Kammen writes about the rights of property and the property in rights. One of the primary functions of government is to protect property. The new Constitution aimed at protecting these rights, as did the various state constitutions. Liberty and property were thought to exist side by side. People couldn’t have one without the other. The best way to safeguard liberty was to safeguard property. While some patriots worried that a free society would produce inequality, wealth, luxury, extravagance, vice, and folly, curbing property rights to prevent these possible evils wasn’t seriously considered by most theorists of the day. Madison pointed out that property rights developed from the diversity in the faculties of men and that attempting to distribute property evenly is a wicked idea. Jefferson wanted to give 50 acres of land to every adult male who lacked property, so that a broad segment of the population would have a stake in the society. With the spread of property goes the spread of liberty.

Andrew J. Reck’s chapter discusses moral philosophy and the framing of the Constitution. Two influential works of political philosophy appeared between 1776 and 1789, John Adams’ Defence of the Constitutions of Government of the United States of America and the Federalist Papers by Hamilton, Madison, and Jay. By far the more influential of the two was the Federalist Papers, which argued for ratification of the Constitution in a series of essays that first appeared in newspapers. Reck outlines the origins of these two documents, portions of which can be traced back to the ancient Greeks and Romans. Other sections of this chapter focus on the convention debates, Forrest McDonald’s comprehensive study of the intellectual origins of the Constitution, the relationship between liberty and property, the compromise by which states retained equal representation in the Senate and representation by population in the House, and Hamilton’s speech at the convention. At the time of the convention, moral philosophy focused on the relationship of special interests to the general good, a relation ship that the Public Choice School and others still are studying today. The framers’ moral philosophy synthesizes the extremes of virtue and interest.

Edward J. Erler’s chapter compares the present view of property rights, as expounded by Justice William Brennan, with the view of the Founding Fathers. According to Brennan, the Fourteenth Amendment is perhaps as important as the original Constitution itself because it upgrades the importance of protecting life and liberty, and places property rights in a secondary position. The Founding Fathers, on the other hand, saw no inherent conflict between the right to property and the rights to life and liberty. Securing the right to property was the means by which the rights to life and liberty could be achieved. John Locke and the natural rights theorists played a very influential role in shaping the framers’ view of property rights. Many documents of the Colonial era, such as the various state bills of rights, are Lockean in structure and content.

Jean Yarbrough focuses on Thomas Jefferson’s view of property rights. One long-running dispute has been Jefferson’s failure specifically to in-elude property among the inalienable rights enumerated in the Declaration of Independence. Rather than life, liberty, and property (as per Locke), Jefferson used life, liberty, and the pur suit of happiness. Yarbrough points out that property is not inalienable, since it can be alienat-ed-traded or given away. Inalienable rights are a special category of natural rights that cannot be transferred to another. Property can be transferred, so it is not inalienable, although it is a natural right. Other sections discuss the origin, meaning, and status of property and the place of property in a republican government. The final section presents an overview of Jefferson’s agrarian republicanism.

Charles F. Hobson’s chapter discusses republicanism, commerce, and private rights from a Madisoninn perspective. Madison was committed to republicanism, the belief that government is derived from the consent of the governed. He was a believer in majority rule but worried that the majority would violate minority rights if not held in check by the chains of the Constitution. Throughout history, republics inevitably had de-dined into despotisms. Madison was determined that this fate would not befall the newly created

United States of America, so he built in checks and balances to protect minorities and to prevent any branch of government from being able to seize too much power. Virtue was needed to sustain republican government, and Madison believed that virtue was best protected in an agrarian society, where individuals could remain independent and need not rely on others for sustenance.

Bernard H. Siegan writes about the limitations placed on Federal and state economic powers by the Constitution. The Constitution protects property rights and a capitalist economic system. Having experienced the abuse of economic rights by state legislatures, the framers provided more specific protection against the Federal abuse of economic rights. States were not to interfere with contracts, although that clause has since withered away almost to the point of nonexistence. A common market between the states prevents jealous special interests within the states from using the power of government to protect their interests at the expense of everyone else.

William Letwin expands on this theme when he addresses the Constitution’s economic policies. While the term “capitalism” wasn’t used in 1789, the concept of capitalism—that the means of production should be privately owned and controlled—was very much a part of the founders’ philosophy. The due process, takings, commerce, and contract clauses all provide evidence that the founders intended individuals to own and control the means of production. Contemporary writings, such as the Federalist Papers, other writings of Madison and Hamilton, and the writings of others during the period, all provide substantial evidence that the founders intended to protect a free enterprise system. However, it cannot be said that the framers intended to found a laissez faire system. Indeed, as a group, they had no concept of such an idea. Their experience had been of mercantilism, and while the framers abhorred certain aspects of mercantilism, they did not come out in favor of a laissez faire system. But the Constitution did not say anything to prevent such a system either.

In the concluding chapter, Michael W. McConnell provides a case study in the relationship between individual liberties and Constitutional structure, focusing on contract and property rights. He goes into some of the history behind contract, including a discussion of the Northwest Ordinance, the Treaty of Paris, the contract dame and the just compensation clause. He also discusses some possible explanations for the different treatments of contract rights and property rights, focusing primarily on the Hamiltonian and Madisonian views.

All in all, this book provides an adequate, though brief, introduction to the prevailing view of liberty and property at the time of the founding of the American republic.

Professor McGee teaches accounting at Seton Hall University.

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December 1989

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