The rights of private property, the single most important foundation block of English and American constitutionalism, are the primary target of liberal-socialist judicial activism.
The broad currents of political and economic developments, as they affected Americans' understanding of the Constitution, were sketched in Parts I, II, III, and IV.
All of this background activity was a product of, or was at least related to, how people viewed the rights of private property.
Socialist theoreticians reject the concept of private property altogether, preferring that all property be "socialized," that is, subject to the regulatory control of society as a whole through a powerful central government. This is what the Soviets called dictatorship of the proletariat.
Whether the government owns all property, by the way, is inconsequential. So long as the collectivized government can regulate the use of property as the intellectuals see fit, there is no difference between regulation and ownership, from the standpoint of socialistic theory. When governments own property, its managers are government employees. When governments regulate property use in ways that reduce its value, its managers are paid by the property owners, but effectively take their orders from government. This is what is called a regulatory taking of private property without compensation to the owners for their loss. It is another form of socialistic redistribution of wealth.
American liberals, our domestic sect of the secular religion of socialism, no longer push for nationalization of the means of production and distribution, as they did from the 1860s through the 1930s. Why should government pay for control of property when they can steal it via regulation? They are now content to let activist Federal judges expand Federal regulation via what they view as the unlimited implicit powers of the Constitution's commerce clause (for details, read here).
Property rights' dominant role in colonial ideas about constitutional government will become apparent to anyone who peruses James Madison's notes on the debates in the 1787 Constitutional Convention in Philadelphia. Those views, which are also evident in the Declaration of Independence's list of grievances were, as Thomas Jefferson wrote, a reflection of the common understandings throughout the colonies.
The North American colonists who were willing to risk their lives, their fortunes, and their sacred honor for independence from the British crown and from Parliament were motivated, more than anything else, by their belief in the essentiality of private property rights.
A sense of property's prominent place in public concerns was conveyed by Samuel Adams, the one person most responsible for convening the Continental Congresses that ultimately issued the Declaration of Independence. Adams organized committees of correspondence in all the colonies for the purpose of keeping everyone informed of British violations of the colonists' rights as Englishmen under the common law and under the British constitution.
The following quotation from Samuel Adams's correspondence, written in 1771 as British retribution against colonial dissenters became heavier, is instructive:
"Mr. [John] Locke has often been quoted in the present dispute...and very much to our purpose. His reasoning is so forcible, that no one has ever attempted to confute it. He holds that 'the preservation of property is the end of government, and that for which men enter into society. ........ Hence, says he, it is a mistake to think that the supreme power of any commonwealth can dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. The prince or the senate can never have a power to take to themselves the whole or any part of the subject's property without their own consent: for this would be in effect to have no property at all.' -- This is the reasoning of that great and good man. And is not our own case exactly described by him?"
Adams, in effect, is saying that the issues of political liberty, for which the colonists were struggling, can ultimately be reduced to one word, property.
Property rights as the single, essential foundation of constitutional government have a long pedigree, which for England and the American colonists went back to Henry II's 12th century institution of the common law and and to Magna Carta in 1215.
Much of the common law concerned property rights and the legal procedures relating to property rights. It is thus not by chance that the most famous literary work of Oliver Wendell Holmes, Jr., our first socialist Justice of the Supreme Court, was "The Common Law," published in 1881. In it he expounded what later became known as "legal realism," the socialistic thesis that evolving concepts of social justice, not established legal precedent, should become the guiding jurisprudential philosophy.
Magna Carta usually is cited as the seminal document in the establishment of individual liberties. From the time of the Norman Conquest in 1066, English kings waged incessant wars on the Continent to protect their French domains and to subdue rebellious sections of their English kingdom. Perpetually short of funds, kings were always demanding more money from their subjects and, when resisted, seizing their property. At a time when his need was great and the nobles had had enough of harsh exactions, they compelled King John to meet with them at Runnymede and to agree to Magna Carta. They had the wealth and held the purse strings, and they were prepared to fight to protect them.
Of Magna Carta's sixty-three clauses, forty-seven of them deal with property rights. In those clauses, the king agreed to specific limitations on his prerogative to exact fees or to seize property arbitrarily. Of the remaining sixteen clauses, two assure the independence of the church and bishops, and fourteen deal with the legal and procedural rights of people imprisoned for resisting the king's arbitrary property seizures.
Magna Carta began the constitutional process of establishing the doctrine that only Parliament can impose taxes on the the people. And it established the people's control of their own property as the power by which all other political liberties were gained from the crown.
The same process was repeated again and again in English history. Royal prerogative continually had to give way to the power inherent in the growing private wealth of the citizenry. Henry VIII, for example, after seizing the English Catholic church's properties early in the 16th century, found himself periodically strapped for cash to support his profligate spending. To finance his array of luxurious palaces and armies of servants, Henry began to sell off former church properties to wealthy merchants, thereby vastly increasing the number of the landed gentry and enlarging the membership and powers of Parliament.
Magna Carta, the 1628 English Petition of Right, and the 1689 English Bill of Rights constitutionalized the principle that even the king is subject to the statute law and to a higher law of justice and morality.
The simple, undeniable, and clarion fact is that our personal freedoms came about, not because of liberalism's "social justice," but long before the advent of socialism. Those political liberties for which the colonists fought in 1776 were constitutionally established, exclusively, and entirely because, centuries before them, enough Englishmen had owned enough private property to compel the crown to recognize their natural-law rights to life, liberty, and property.
Take away those private property rights via regulation and confiscatory taxation, and you have Franklin Roosevelt's New Deal, a reversion to the arbitrary rule of King John in 1215. This is the paradigm that animates liberalism and judicial activism.
The writer's weblog is http://www.thomasbrewton.com/
Email comments to viewfrom1776@thomasbrewton.com
