Constitutionalizing the Private Property Order
In 1854, the great German historian, Leopold von Ranke, identified one of the crucial differences between the British and American understandings of what a constitution is in a private lecture to Maximilian, the king of Bavaria: “By abandoning English constitutionalism and creating a new republic based on the rights of the individual, the North Americans introduced a new force into the world. . . . This was a revolution of principle.” This essay sketches how and why American revolutionaries constitutionalized the “rights of the individual” in what I refer to as a laissez-faire constitution. To that end, I shall focus here on those principles and institutions that saw their first expression in the revolutionary state constitutions developed in America between 1776 and 1780. The essay following this one—to be titled “The Laissez-Faire Constitution”—will elucidate the culmination of that experiment as represented by the Constitution of 1788.
America’s revolutionary moment—that thirty-year period between 1761 and 1791—was the most innovative era of constitutional thinking and practice in world history. This period is bookmarked at the beginning with James Otis’s fiery courtroom defense of colonial freedom and rights in the little-known and certainly long-forgotten writs of assistance trial in 1761 and at the end with the ratification of the Bill of Rights. During the interceding years, eleven of the previous thirteen colonies drafted new state constitutions and then “we the people” drafted and ratified a national constitution and a bill of rights. Nothing in world history has compared to what the Americans did in a relatively short period and under the stress of defending their nation from an attack by the world’s strongest military power. The Americans radicalized and reconceptualized how modern man thinks about the individual and his relationship to government.
The true laissez-faire constitution—or what I also refer to as the constitution of liberty—is built upon certain foundational moral principles and it is held up by certain core political pillars. Broadly speaking, the core moral principles on which a laissez-faire constitution rests include self-ownership, self-sovereignty, and self-governance, which are expressed in the doctrine of natural or individual rights (i.e., the rights to life, liberty, property and the pursuit of happiness). The constitution of liberty is held up by certain core political pillars, namely, separation of church and State, school and State, and economy and State. In sum, a laissez-faire constitution and the government it creates institutionalize and protect spheres of freedom via general rules and a system of justice that liberate and protect men to live, produce, trade, and seek their highest spiritual and material values. For the purposes of this essay, I shall focus on those principles, structures, and protections developed by American revolutionaries that are connected to economic freedom.
Self-Ownership as the Right to Property
America’s eighteenth-century revolutionary founders were strong proponents of the inalienable rights to acquire, keep, and trade property and the freedom to form contracts. They viewed man’s right to property as grounded in man’s nature and derived from the moral law of nature. They also believed, to a man, that property rights were virtually absolute and that a primary responsibility of government was to protect those rights. According to the Massachusetts Assembly in 1768, it is “an unalterable law in nature that a man should have the free use and sole disposal of the fruit of his honest industry, subject to no control.” Likewise, in 1774, the Continental Congress declared that the people “are entitled to life, liberty, & property” as an inviolable right “by the immutable laws of nature.” The recognition of property as a fundamental moral right was repeated over and again during the revolutionary period. The founders stood for the moral and legal right of individuals or groups to own and use property and to freely sell, trade, or give it to others. This means that individuals have the right to create, acquire, keep, use, loan, trade, or give away property; it means the right to promise and exchange one’s property (including one’s mental and physical labor) in the present or future; and it means that government must recognize private ownership and protect owners against robbery, theft, or predatory confiscation.
The founders’ moral argument for property and contract rights (contracts are a corollary principle of the right to property) is built on a deeper foundation, though, which claims that men are naturally equal, free, and independent and thus self-owning and self-governing by moral right. Property and contract rights are grounded on the premise that individuals own their minds and bodies and therefore have a right to freely use their minds and various talents to acquire, keep, or trade, property. The right to trade or give away physical property is based on the right to possess property; the right to possess property is based on the right to acquire property; and the right to acquire property is based on the right of each person to employ, control, use, and apply one’s mind and physical labor to transforming physical reality.
The fundamental principle that individuals are morally self-owning and self-governing was stated most clearly and forcefully during the revolutionary era by the Reverend Dan Foster of Windsor, Connecticut in his brilliant but now long-forgotten pamphlet, A Short Essay on Civil Government. Foster there declared that every single man has, by nature, “a principle of individuation; i.e. he hath such natural and undoubted right to, and property in some things, as no other man upon earth has: He has something he may justly call his own, and may appropriate it to himself, in such a sense as no other man may call it his, or appropriate it to himself.” According to Foster, the single most important thing that each and every man owns is his own self—his mind and body.
Foster’s essay provides the single best explanation of what natural rights are, particularly the right to life and its implied corollary, the right to property. Foster’s analogous moral reasoning begins, hypothetically, with two individuals whom he identifies as “A” and “B”:
A, HATH a right to, and property in, his hand, in such a sense as B hath not, nor can have; he may with great justice call his hand his own, and he hath an individual and entire right to, and property in his hand, which B cannot have. And it would be a manifest and intolerable invasion of A’s right and property, if B should pretend to lay claim to his hand, . . . as though it were his own, and as though he had a just right to, and property in it. . . . If A hath such right to, and property in his hand, as he is now said to have, it follows, that he hath a right to make use of his hand, for his own ends and purposes, and according as he shall please: and B can have no right or authority to rise up and forbid A the use of his hand, or to dispute with him his liberty and authority to use it according to his own pleasure. For such conduct would evidently declare that B has some right to A’s hand, evidently contrary to truth, for he has none: for if B has no right to A’s hand, according to the supposition, then certainly he can have no just right or authority to forbid A that use of it he shall please to put it to: For all authority and dominion are founded in right and property.
Foster next draws out the moral logic of his core principle. If a man has a right to his hand (and what his hand produces) that no other man can claim a right to, then it follows that he has a right to both hands, and to the rest of his body, including the workings of his mind. In sum, each man “hath an individual and indisputable right to himself,” that is, to all his “powers and faculties,” and with that right he may use these powers and faculties “as he shall judge it convenient, and for his own interest, and purposes of life.” A man’s right to his own life is inseparable from his right to property
The right that each man has in his own person leads logically to the right of property in possessions as individuals mix their labor with worldly entities:
Accordingly, A labours with his hands, uses them in various secular employments, and is industrious in his business, for his support and maintenance. We will suppose . . . that A takes a piece of unoccupied land, which is claimed by no inhabitant of the earth; upon this ground he settles and builds, brings on cattle, so soon as prepared for them, and other living creatures, for his support and conveniency. Here he lives a number of years, manages his business alone, and separate from all near society with any other rational beings, and gains a considerable estate. Now A while he dwells here alone, hath an individual right to his land, and all that he hath brought upon it, and the effects of his own labour and toil upon it; to the Land he hath the right of prime occupancy, a very just and good right; and to all the fruits and effects of his labours, he hath just as good a right, as he hath to his hands, with which he laboured.
Foster and the revolutionary generation viewed the moral right to property as absolute. It was not to be violated by anyone, and government most especially:
No man, or number of men have a right to disturb A in the enjoyment of his family and estate, or property: For to suppose them to have such right, would be to suppose them to have some property in A’s family and estate; for if they have no such property, the supposition that they have right to molest or disturb A in the enjoyment of his family, and the possession of his estate, is impossible: for if one man has no property in the possessions of another, he certainly can have no right to give any molestation to this other man in the enjoyment of them: . . . If B has no right to begin to give molestation to A, who is quietly and peaceably enjoying his own estate, then neither has C, D or E, or any other; for E has as much right to A’s estate as B has, that is, none at all; and so it is with C, D, and all the rest. . . . So that no man upon earth hath any just right to begin to disturb A in the enjoyment of his family and estate.
Foster recognized the moral right of “A” to “resist and repel every attempt of “B” to invade his property. Because a man owns himself, he owns the property that he has made or mixed his labor with and therefore acquired an unalienable right to. His property is his by right and can be taken from him only with his consent, which is derived from his self-ownership.
Dan Foster’s view of the deepest source of man’s unalienable right to property was likewise supported by virtually every member of the revolutionary generation. Nathaniel Chipman from Vermont, for instance, declared in his Sketches of the Principles of Government (1793) that among men’s “primary rights” is “the right which men have of using their powers and faculties, under certain reciprocal modifications, for their own convenience and happiness,” which is most commonly expressed as the “right of acquisition” and of “holding property.” Zephaniah Swift from Connecticut likewise announced in his A System of the Laws of the State of Connecticut (1795) that the “original right to property is founded in the nature of things” (emphasis added), which means that it is an extension of the moral laws of nature. The revolutionary-founding generation understood private property to be an unalienable right that is grounded on the prior and more fundamental claim that men are intellectually and physically self-owning and self-governing. The right to property is simply an extension of the absolute moral right claimed by individuals over their own minds and bodies.
Applying the Right to Property
The moral right to property intellectual and physical is an extension of the right to self-ownership. The founders believed uniformly that a man’s right to his property is near absolute and that, in the words of John Witherspoon “[w]hatever is a person’s property, he has a right to do with it as he pleases.” The only legal limitation on property ownership, according to John Witherspoon and the rest of the founders, is that it may not be used “to the injury of others.” Zephaniah Swift from Connecticut claimed all individuals have “an indisputable right to do every act which they please, in the pursuit of their own happiness, that does not contravene the moral law, nor injure any of their fellow creatures. . . . The original right to property . . . consists in the power of using and disposing of it, without control.” The founders did recognize, however, that there were instances in which the use of one’s property did violate the rights of others and should therefore be regulated. Common laws or local ordinances to prevent injury and a violation of rights might include, for instance, those regulating noise, smell, pollution, and various nuisances. In his Lectures on Law (1791), James Wilson argued that the keeping of hogs “in any city or market” is an example of a public nuisance, which actually violates the “natural rights” of individuals and of civil society. Otherwise, the protection of property rights and economic freedom were the order of the day.
The natural right to create, acquire, and keep property necessarily means the right to use, trade, loan, or give it away. Consider the trading of goods and services, for instance. The revolutionary generation considered the freedom to trade as an extension of the natural right to own property. In 1773, the Massachusetts Council announced, “Life, liberty, property, and the disposal of that property with our own consent, are natural rights.” The following year, Thomas Jefferson, in his Summary View of the Rights of British America, declared that “the exercise of a free trade with all parts of the world [is] possessed by the American colonists as of natural right.”
The revolutionary generation understood that the right to private property can only be infringed via taking it through the initiation of physical force (or by fraud) either by individuals or governments, i.e., by criminals. According to the town leaders of Charleston, South Carolina, “the man who demands my money with a pistol at my breast is commonly called a robber, and . . . no proposition in Euclid is more capable of demonstration, than that such a man has as good a right to the money in my pocket as the House of Commons to tax us without our consent.” In other words, stealing—whether by an individual or a government—is a moral crime. In his 1778 “A Bill for Proportioning Crimes and Punishments,” Thomas Jefferson referred to thieves as who “commit violations on the . . . property of others” as “wicked and dissolute men.” A core purpose of government in a free society is to protect property owners from theft, robbery, and fraud.
Constitutionalizing Property Rights
What role did the revolutionary-founders envision for government in the protection and promotion of private property?
Between 1776 and 1780, eleven states drafted constitutions and their new governments made laws (criminal and civil) the primary purpose of which was to protect the inviolable status of property and the sanctity of contracts. America’s revolutionary constitution-makers recognized and institutionalized private ownership and the sanctity of contracts as fundamental, natural rights. (Strictly speaking, the sanctity and inviolability of contracts is derivative from the more fundamental rights to liberty and property.) Virtually every one of these revolutionary constitutions contained some kind of recognition and promise of protection for the rights of property. The Virginia Bill of Rights (1776), for instance, declared that there is an “inherent” right to acquire and possess property. Likewise, the Pennsylvania constitution of 1776 described the right of “acquiring, possessing and protecting property” as “natural, inherent, and inalienable. The Vermont constitution of 1777, the New Hampshire constitution of 1784, and the Delaware constitution of 1792 used near identical wording. The Massachusetts constitution of 1780 and its Declaration of Rights established general guidelines on the relationship between property rights and government: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.” The government of a free society must also provide relief and satisfaction to those whose core rights have been violated by other individuals or by the government itself: “Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character.”
The private property order established by the founders’ constitutional and legal reforms recognized in common and statutory law the legal boundaries defining who owns what and it created rules defining the obligations associated with contracts; it constitutionalized the role played by government in protecting owners against damages to their property and in enforcing contracts; and it established a court system to try cases involving property and contracts.
A primary responsibility of government in a free society is to adapt the natural moral right to property to the conditions of civil society, which means to put property on a permanent foundation via civil laws. Most often this means establishing clear legal rules and reliable records defining and enforcing the boundaries of ownership, i.e., determining who owns what. One obvious and necessary way to do this is to create offices to record deeds and titles. To that end, the state constitutions of Pennsylvania (1776), Delaware (1776), Maryland (1776), Vermont (1777), Massachusetts (1780), and New Hampshire (1784) saw the need to create offices to record deeds. Likewise, the Continental Congress in 1785 institutionalized private property rights in the Northwest Territory by establishing a “Land Ordinance” to survey and record the ownership of newly settled land. According to Zephaniah Swift, each person in a free society must have “a clear title to the property he acquires” that is “independent of any superior whatever.”
The constitution and legal system of a free and civil society, one that is morally healthy and materially wealthy, requires that property be defined and protected as one of its core pillars. The flip side of government protecting property means that government must otherwise leave the owners of property alone and get out of the way so that they may best determine how to use their property.
America’s founding generation understood that a laissez-faire government will support a free-market economy via two necessary mechanisms. The first requires government to permit and protect all adult individuals in selling their goods and/or services to all other adults at the price of their choice. (The role of children in a market economy requires some modifications.) Governments must not impose barriers to entry via taxation, regulation, or subsidies that would limit or restrict who may engage in production and trade. The second requires the government of a free society to recognize, respect, adjudicate, and enforce private contracts, which were deemed as sacrosanct for the founding generation.
Constitutionalizing the Laissez-Faire Government
The founding generation also recognized that government can, no less than individuals, violate property. What kind of provisions did they build into their revolutionary state constitutions preventing governments from violating property rights?
The first and most important quality of the new state constitutions was to define and limit government power to secure private property and contracts. The dilemma confronted by American constitution-makers, legislators, and judges was to grant sufficient power to the government to punish rights-violating criminals on the one hand, but also to simultaneously prevent the government from abusing its powers against citizens on the other hand. To that end, America’s revolutionary constitution-makers granted only limited powers to their various governments. They took extraordinary steps in their constitutions to prevent the accession, accumulation, and abuse of arbitrary powers in the hands of public officials. (I will have more to say on this topic in “The Laissez-Faire Constitution”.)
Two of the most important legal principles they constitutionalized to safeguard person and property against arbitrary government power were the “rule of law” and the related principle of “due process.” Virtually all state constitutions institutionalized various “due process” legal protections, such as habeas corpus, jury trials, and various other trial procedures. The right to “due process” is a secondary or civil right the purpose of which is to protect primary rights such as person and property via subsidiary rights such as the right of habeas corpus and various trial procedures designed to protect the innocent. Article 9 of the Pennsylvania Declaration of Rights established, for instance, seven due process rights. In all criminal prosecutions, defendants shall have 1) “a right to be heard by himself and his council”: 2) “to demand the cause and nature of his accusation”; 3) “to be confronted with the witnesses”; 4) “to call for evidence in his favour”; 5) “a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty”; 6) “nor can he be compelled to give evidence against himself”; and 7) “nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.”
America’s revolutionary constitutions also typically prohibited bills of attainders and ex post facto laws, both of which had been used historically to violate the rights of person and property. Bills of attainder are legislative acts that convict, sentence, and punish individuals (including the taking of their property) without a trial. Such laws are, according to St. George Tucker, one of the new nation’s best legal scholars, “state-engines of oppression in the last resort, and of the most powerful and extensive operation, reaching to the absent and the dead, as well as to the present and the living.” More specifically, bills of attainder, he continued, “supply the want of legal forms, legal evidence, and of every other barrier which the laws provide against tyranny and injustice in ordinary cases: being a legislative declaration of the guilt of the party, without trial, without a hearing, and often without the examination of witnesses, and subjecting his person to condign punishment, and his estate to confiscation and forfeiture.”
Ex post facto laws are laws that retroactively imposed criminal liability on past actions, thereby criminalizing that which was legal when performed originally. Not only did Thomas Jefferson think that ex post facto laws violated the fundamental moral rules of justice, but he went so far as to suggest that they should be made unconstitutional in civil cases as well:
The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. . . . The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just.
Another example of how constitutions can protect property and keep the economy open and free is to prevent governments from barring entry to a business or profession through the support of artificial monopolies, which are created by granting exclusive government generated privileges to specific persons or groups. Several state constitutions denied their governments the power to create monopolies. The Virginia Bill of Rights declared, “That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.” The Maryland constitution likewise states, “monopolies are odious, contrary to the spirit of a free government, and the principles of commerce; and ought not to be suffered.” And so too with the North Carolina constitution, which prohibited monopolies as “contrary to the genius of a free State, and ought not to be allowed.”
One area in which the founders did permit temporary monopolies concerned intellectual property. The founding generation understood that the deepest source of man’s property rights will be found in the use of one’s mental faculties. Starting in 1783, all 13 states began passing copyright laws that recognized the necessary relationship between thinking and property rights. The Rhode Island copyright law was the most explicit in naming the relationship between the mind and property:
Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons, in the various arts and sciences; as the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is the natural right of all men, there being no property more peculiarly a man’s own than that which is produced by the labor or his mind.
And what about taxation? Even a laissez-faire government must have access to revenue to support its legitimate functions, and this was done during the founding era most commonly via taxes, duties, imposts, and excises on commercial transactions. As all Americans know, the Revolution was launched, in part, as a tax rebellion. The revolutionary generation understood all too well that taxation had served as an engine of abuse and tyranny throughout history. (I will note in passing that the notorious Stamp tax of 1765 was actually a salutary form of taxation that was unjust only in that it was imposed on the Americans without their consent! As for the actual tax itself, the use of government-issued stamped paper for legal transactions was entirely legitimate.)
In the wake of the imperial crisis and the causes that inspired the Revolution, America’s founders made sure that taxes were not to exceed the legitimate and necessary functions and costs of running a rights-protecting government. The Pennsylvania constitution, for example, made sure that taxes would not be imposed arbitrarily by political authorities and that they were only to be used for essential purposes:
NO public tax, custom or contribution shall be imposed upon, or paid by the people of this state, except by a law for that purpose: And before any law be made for raising it, the purpose for which any tax is to be raised ought to appear clearly to the legislature to be of more service to the community than the money would be, if not collected; which being well observed, taxes can never be burthens.
The founders did recognize, however, that there are times in the life of a nation when its government must have the authority to “take” property from private owners for “public” purposes. Known as eminent domain, the most obvious cases of this practical necessity would be during wartime, when the government might have to take property to build roads, canals, forts, court houses, and prisons. Five revolutionary state constitutions and the federal Northwest Ordinance recognized eminent domain. For instance, the Vermont Declaration of Rights (1777) announces, “private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man’s property is taken for the use of the public, the owner ought to receive an equivalent in money.” The key word in the Vermont expression of the eminent domain power is “necessity.” The founding generation understood “necessity” to mean that which is absolutely required (usually during a national emergency) to protect the natural rights of the whole community. Over the course of the last 240 years or so, the idea of “necessity” has been expanded to mean whatever legislators want. Both state and federal governments have abused eminent domain by taking property for illegitimate purposes such as constructing public parks or giving monopolistic commercial rights to private economic concerns.
All principles and institutions—even the best of them—are subject to the abuse of the people who oversee them. The predatory lust for power seems to be a fact wrought into the constitution of human nature. America’s revolutionary state constitutions went further than any others in history to secure the property and contract rights of individuals. These constitutions were not perfect or bullet proof, but they were extraordinarily good in the context of the time in which they were written. A few years later, the framers of the Philadelphia constitution were able to take and use what they learned from the revolutionary experiment in state constitution-making and apply it to creating a new national constitution.
My next essay in this series will examine the Constitution of 1788 and the Bill of Rights of 1791 as the culmination of the revolutionary founders attempts to create a laissez-faire constitution for a free society.