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16

Property



CHAPTER 16

Introduction

The bald opposition between human rights and property rights is asserted commonly enough today but would have been largely unintelligible to the Founders. John Adams, for instance, thought "Property is surely a right of mankind as really as liberty" (no. 15). Similarly, Alexander Hamilton's promise at the beginning of The Federalist Papers that they would show how adoption of the Constitution would provide additional security to the preservation of republican government, "to liberty and to property," treated this triad as complementary goods, not as incompatibles. Of course the Founders were keenly aware of the persistent problem posed for political life by the opposition between those with and those without property. Not the least of the considerations that led Hamilton to pronounce "energy in the executive . . . a leading character in the definition of good government" was its essential role in protecting property "against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice" (see ch. 9, no. 10). Like thinkers at least as far back as Plato and Aristotle, the Founders saw this opposition as a two-sided problem stemming from both the overbearing rich and the resentful poor. All thinking about property had to begin with that pre-Marxian commonplace.

Although the term "property" is conspicuously missing from the original Constitution (it does not appear until Amendment V), that hardly bespeaks indifference. Taxes, duties, imposts, excises, lands, commerce, bankruptcies, bills of credit, the exclusive rights of authors and inventors, contracts, debts, and engagements--all matters of explicit Constitutional provision (see, e.g., Art. 1, sec. 8, cls. 1--4, 8; Art. 1, sec. 10; Art. 4, sec. 2, cl. 3)--manifestly pertain to property. Less clear is what the Constitution's signers and ratifiers meant by property, indeed, even whether it was viewed as a means or as an end in itself. That property rights form a buffer protecting the individual from governmental abuse was assumed but not dwelt on.

The texts collected here testify to shifting meanings. Shifting political implications also therefore were inevitable, for property has broad connections with suffrage, the purposes of representation, institutional arrangements, economic policy, and the like. Generally speaking, the authors and political actors agreed: proprietorship is a condition for entry and full participation in political life, a prerequisite for the necessary independence that would guard the citizenry from becoming the mere instruments of the powerful and ambitious, a token of the seriousness of one's commitment to stability and order, and a claim to a full voice in the disposition of the community's affairs, especially as those bear on the enjoyment of one's own. They did not, however, agree on what constituted politically relevant proprietorship, on what it should take to establish that one had a stake in the country's public life.

All in all, then, property was seen as a good, albeit a problematic good. Not all kinds or all amounts were simply praiseworthy. In considering the problems and arriving at their several judgments, these men (unlike their Puritan contemporaries or predecessors) viewed the matter from an emphatically political perspective. Political economy was too important to be left to economists or theologians.

First place in the discussion of these matters rightly belongs to John Locke, whose analysis (no. 3) profoundly shaped the language and thinking of those who followed. His emphasis on the distinct bases of property (before and after the establishment of civil society) had the effect of joining a primordial, presocial claim with conventionally established terms for the exercise of that claim. The social utility of a man's laboring to satisfy his wants (variously rated at 90 percent, 99 percent, and over 99.9 percent of the value of things), is a powerful inducement for a ruler to secure the conditions under which each man might enjoy his own. In the state of nature, where men are equal--and equally vulnerable--each discovers that "the enjoyment of the property he has in this state is very unsafe, very unsecure." Sensibly enough, men join "for the mutual Preservation of their Lives, liberties and Estates, which I call by the general Name, Property." In this comprehensive sense of "property," a man's liberties are his possession as much as his possessions are a function of his liberties. Political society is to be guided by its charge to preserve property so understood, and it is to be judged by its effectiveness in so doing. Furthermore, if the preservation of property (thus broadly defined) is indeed the chief end of society and government, whatever "invades the Fundamental Law of Property . . . subverts the end of Government." The far-reaching implications of all this--at once revolutionary and conservative--were perceived and elaborated by Locke's successors.

Blackstone's account (no. 5) repeats, while absolutizing, Locke's insistence on the fundamental triad of rights or liberties. "Every man of rank or property" ought to understand thoroughly the foundations of all that he cherishes lest his ignorance "hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other." These were lessons to take to heart, and of all Blackstone's readers none did so more avidly than the litigious Americans (see ch. 1, no. 2). Two documents stemming from two different controversies serve to illustrate the point. The first bears the mark of Samuel Adams's powerful argumentation during the crisis rekindled by the arrival in Boston of customs commissioners to enforce the Townshend Acts (no. 6). The other is the town of Sutton's response to the proposed constitution for Massachusetts of 1778; nothing about that critique is crude other than its orthography (see ch. 15, no. 22).

It was clear that the establishment of popular government carried many implications for the tenure of property. Gouverneur Morris put the difficulty plainly in a set of unpublished ruminations (no. 8). The progressive development of a commercial society enhanced civil liberty by requiring the security of property, good faith, and the like. All these operated as so many restraints on the political liberty of the ruling part (be it prince or popular majority). Though civil liberty required political liberty for its defence, an unrestricted governmental authority would "sacrifice the End to the Means." At bottom lay a continuing and necessary struggle between opposing forces.

Jefferson's persistent battle to expunge entail and primogeniture from the revised laws of revolutionary Virginia was rightly viewed by him at the time and in his autobiographical recollections forty-five years later as part of "a system by which every fibre would be eradicated of antient or future aristocracy, and a foundation laid for a government truly republican." (See ch. 15, no. 20 and ch. 4, no. 7.) But if the new modes and orders required changes in the character of property holdings, no less might the security of property require some adjustments in popular government. John Adams (no. 15), like Hamilton, Madison, and other Founders, rejected outright the notion that popular liberty neither would nor could endanger the holdings of what necessarily would be a minority. Special safeguards were accordingly in order. (See also Essex Result, in ch. 4, no. 8.)

The claims of society upon private property--touched by Locke and treated summarily by Blackstone--were examined more fully by Franklin and Jefferson. Their arguments raise and assess the claim of natural right and its implications for a just social policy. Franklin insisted that all property beyond that required for the "Conservation of the Individual and the Propagation of the Species" could be enjoyed only on terms that the public might set through its laws (no. 12; see also ch. 12, no. 25). Jefferson, too, maintained that holders of property, who owed all of its safe enjoyment and much of its title to "social law" rather than nature, could not raise absolute claims that denied society what its welfare required (no. 25). Nor could the claims of natural right "to labor the earth" be ignored while there remained uncultivated land and needy men (see ch. 15, no. 32).

Property figured large in the Constitutional Convention's attempts to fix the proper basis of representation (no. 16). Gouverneur Morris's objections to numbers as the sole basis appear to rest on both a fear of the poor and a fear of the rich: both envy and ambition threaten a free, civilized society. In this view of things, limiting suffrage to those owning land would help secure "the main object of Society" and avert the danger of an aristocracy installed with the purchased votes of the propertyless. Mason challenged Morris's statement of the problem as well as his solution as viewing "things too much through a British Medium." In settling the criteria for suffrage one ought to look for "evidence of attachment to & permanent common interest with the Society." Such evidence could not sensibly be limited to ownership of land. "Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in their own Country, to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow Citizens[?]" Would it make sense, Franklin argued further, to give this mark of disesteem to honorable and public-spirited common people? Madison, too, viewed the matter as a prudential question, but came down on the other side. "Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories of Republican liberty." If the issue of "conflicting feelings of the Class with, and the Class without property" was not yet acute, that was owing to the singularly fortunate circumstances of the United States at the time. But times and circumstances would change. Madison was to have various occasions to rethink and reformulate his notions of a prudential accommodation between those who feared to lose and others who hoped to gain: while advising founders contemplating a new constitution for Kentucky (see ch. 17, no. 25), while editing his notes of the Philadelphia Convention (no. 26), and while considering the issue in the context of the Virginia Constitutional Convention of 1829--30 (no. 27).

In the end the Philadelphia Convention would leave the thorny matter of voter qualifications to the states by accepting their least restrictive standards (for electors of the lower houses of the state legislatures), and by imposing no additional federal requirements of its own (see ch. 13). The House of Representatives would thus be as popular or democratic a body as the states severally chose for it to be. The rule of numbers in the legislature would be mitigated by the indirect election of Senators and the equal weight of unequal states in the upper chamber, and by the three-fifths rule for counting slaves when reckoning state populations to be represented in the lower chamber. And, unlike a number of state constitutions of the time, the Founders' Constitution would set no property requirements of a particular kind or level in order to hold any federal office.

The problems raised for property and by property seemed inescapable and seemed inseparable from its unequal distribution. Given that "property is the basis of power," Noah Webster (no. 17) thought that only "a general and tolerably equal distribution of landed property" would secure republican liberty. Given the same premise, Melancton Smith (no. 20) thought that the number of representatives should be numerous enough to make it likely that "a sufficient number of the middling class" would be elected--sufficient, that is, to control the extremes of the great and the poor. Like Smith, Madison entertained no notion of a distribution of property equal enough to avert the turmoils of domestic faction (see ch. 4, no. 19). America was not fit for a Harringtonian Agrarian (see ch. 15, no. 2). Reliance would be placed on other devices: not removing the causes of faction, but rather controlling its effects.

The range of meanings attached to property persisted. Madison's essay for the party press (no. 23) stated a conclusion with highly partisan implications, but the statement itself in its generality would have raised few eyebrows among the Americans: "as a man is said to have a right to his property, he may be equally said to have a property in his rights." In this "larger and juster meaning," a threat to one form of property was a threat to the whole of it. William Paterson's discussion (no. 24)--this time not as Founder, but as Supreme Court Justice riding circuit--recurs to the language of the Declaration of Independence and beyond that to Locke's Second Treatise. The government's treatment of property--ringed as it was with constitutional safeguards--was itself a test of the possibility of constitutional government. This was an issue in which literally everyone had a stake.


The Founders' Constitution
Volume 1, Chapter 16, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch16I.html
The University of Chicago Press

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