“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.