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Let's Return to Constitutional Economic Rights Before it's Too Late

Property, Rule of Law & Freedom

By —— Bio and Archives January 9, 2013

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While in the midst of a wholesale reevaluation of the right to private property, it is timely to reexamine the history of US property rights. What exactly caused America’s unparallelled level of prosperity and freedom? Certainly our economic success then created unparallelled global influence and military might. But what factors allowed America’s stunning growth in economic power in such a short period of time? This economic success was driven by a firm Rule of Law regime which supported the Constitution’s unique defense of private property.

What is the relationship between property, Rule of Law and prosperity? In a nutshell, history shows that unless private property is protected by a firm, unyielding and unbiased Rule of Law, markets will not flourish. Therefore, wealth will not grow and all the other things associated with a prosperous society will also fall by the wayside. The reasons for this are ultimately based in human nature. People are not automatons who simply go about doing “what we are supposed to do.” Instead, human motivation and productivity are very much tied into the rewards and risks found in any undertaking. Yet, if the government takes away the rewards of ambition, leaving behind only the risks, then productivity will fall precipitously.

It is one of the hallmarks of Marxist-influenced thinking to insist human nature does not exist. This single presumption has caused more chaos than probably any other leftist idea. It’s a direct result of assuming God is a fiction, ie religion as the Opiate of the Masses. But, if there is no God, then mankind cannot be made in His likeness—Imago Dei. Further, if humans evolved from a random series of directionless events, and there is no inherent core in people, then anything goes and nothing is out of bounds for ethics, morality, or any other human undertaking. Or, as Dostoevsky believed—Without God, everything is possible. So, the presumption mankind is just a soulless, material being is the single most destructive element in the progressive worldview, and the root cause of all subsequent economic failure.

I. History & Importance of Rule of Law

The Rule of Law as a concept is tied historically to such thinkers as Aristotle, and legal developments such as the Ten Commandments, a foundational legal code. The American Constitution is a concrete example of Rule of Law theorizing, creating a bedrock set of precepts. As a concept, the Rule of Law is a necessary addendum to the Natural Law theory of jurisprudence. It was Scottish divine and university professor Samuel Rutherford who most eloquently described the concept of the Rule of Law in his Lex Rex, or The Law is King. This work influenced the Founders, as well as philosopher John Locke’s writings on constitutionalism and property rights. Locke’s contribution to a Rule of Law republic can be seen in his chapter Section 202 of Chap. XVIII “Of Tyranny” in Book II of the Two Treatises of Government :

Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed.

The Rule of Law might be the most important factor in determining which countries are the most productive and economically successful, according to one writer. He describes economist Woody Brock’s claim that a nation’s GDP growth is based mainly on whether it follows the rule of law:

Economist and investment adviser John Mauldin notes: I had dinner with Dr. Woody Brock this evening. He mentioned some analysis by an institution that looks at all sorts of data, like how easy it is to start a business in a country, corporate taxes and business structures, levels of free trade and free markets, and the legal system. It turned out that the trait that was most positively correlated with GDP growth was strength of the rule of law. It is also one of the major factors that Niall Ferguson cites in his book Civilization as a reason for the ascendency of the West in the last 500 years, and a factor that helps explain why China is rising again as it emerges from chaos. Economists have thoroughly documented that failure to enforce the rule of law leads to a loss of trust… which destroys economies.

II. Defense of Private Property

Private property is as old as mankind, but ancient civilizations gave this no constitutional protections. The modern world could not have developed without a defense of ownership rights. John Locke is considered the father of private property rights, as described here:

Locke proposed a radical conception of political philosophy deduced from the principle of self-ownership and the corollary right to own property, which in turn is based on his famous claim that a man earns ownership over a resource when he mixes his labour with it. Government, he argued, should be limited to securing the life and property of its citizens, and is only necessary because in an ideal, anarchic state of nature, various problems arise that would make life more insecure than under the protection of a minimal state.

In fact, the great problem in emerging third world economies is the lack of Rule of Law regimes and property rights. Author Barry R. Weingast, in Why Developing Countries Prove So Resistant to the Rule of Law, claims these states lack the wise institutions designed to sustain a body of laws and rights against the depredations of would-be tyrants and self-seeking coalitions. Therefore, these countries typically fail to create prosperity because of the short-sighted infighting which blocks creation of long-term stability. Likewise, as America loses our Rule of Law heritage, economic prosperity must lapse—there is no other possibility.

Author Richard Pipes, preeminent authority on Russian communism has stated in Private Property, Freedom, and the Rule of Law, that the reason Russia never thrived economically is because it lacked a long-term commitment to Rule of Law, civil rights and private property. He writes,

I have long wondered why the course of Russian political history differed so profoundly from that of the rest of Europe, with which Russia shares a common religion, a common high culture, and a common frontier. The periods of freedom and the rule of law in Russia were always brief and precarious—fleeting episodes in the long history of autocratic government in which the country was governed not by law but by the will of its rulers. Some time ago, I concluded that the difference lay primarily in the weak and late development in Russia of private property, especially in agricultural land, which until the last century had provided the overwhelming bulk of its wealth.

III. Founder’s Views on Property

Thomas West argues that there was a consensus over the centrality of property rights and the Constitution. He writes, that the Founders had an…

...agreement on the three main policies that, taken together, provide the necessary protection of property rights: the legal right to own and use property in land and other goods; the right to sell or give property to others on terms of one’s own choosing (market freedom); and government support of sound money.

Obviously the Founders believed in the sanctity of private property, or they would have never protected it in the Bill of Rights, or drafted the Contracts Clause into the Constitution. Here are some Founder’s quotes illustrating that point:

The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet” and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free. -John Adams, A Defense of the Constitutions of Government of the United States of America, 1787.

The true foundation of republican government is the equal right of every citizen in his person and property and in their management. Thomas Jefferson.

The strongest bond of human sympathy, outside of the family relation, should be one uniting all working people, of all nations, and tongues, and kindreds. Nor should this lead us to a war upon property, or the owners of property. Property is the fruit of labor; property is desirable; is a positive good in the world. That some should be rich shows that others may become rich and, hence, is just encouragement to industry and enterprise. Let not him who is houseless pull down the house of another, but let him labor diligently and build one for himself, thus, by example, assuring that his own shall be safe from violence when built.—Abraham Lincoln, March 21, 1864.

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. According to this standard of merit, the praise of affording a just securing to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.—John Adams, Federalist Papers #16 “Property.”

IV. Is America Adopting Socialist Property Law?

With the reelection of Barack Obama, and his emphasis on deficit spending and giant new state programs, there is little doubt America is turning hard left towards collectivist policies. For example, instead of using tax cuts to reduce expenditures, the administration is counting on tax hikes to trim deficits, despite the fact the gap is too great to be addressed in this manner. In the meantime, more tax hikes are coming. For example, the answer to the Fiscal Cliff problem is said to cost Americans an extra $4 Trillion in deficit spending! So this appears to be the permanent solution to America’s fiscal troubles, meaning socialism is the most likely outcome. Such a specter troubles Russian expert Richard Pipes, who writes:

In general, I argue, in the modern world the main enemy of freedom is not tyranny but the striving for equality—equality interpreted not as equality of opportunity or equal treatment by the law but equality of reward. Because people are unequal in their talents and ambitions and thus acquire worldly goods in unequal measure, they can be made to share what they have only by coercion—and this coercion not only abolishes freedom but precludes equality as well. For in order to enforce coercion, the state needs an appropriate coercive apparatus—and the people who are in charge of it quite naturally demand privileges of all sorts for their services.

The Soviet Union sought to institutionalize economic equality among its citizens in the most determined and ruthless manner ever attempted. And yet after 70 years of unprecedented tyranny costing the lives of millions, it produced a state that was not only unfree and miserably poor but socially highly lopsided, with an elite that enjoyed a Western standard of living and masses that lived on a Third World level.

Rather than pursue the phantom of perfect equality, we should make certain that people are given every chance to improve themselves, while ensuring a minimally decent living standard for the less fortunate. This will not stifle liberty; nor will it create the conditions that prevailed in every communist country: general apathy and hopelessness.


History teaches us that without a firm Rule of Law, which was overturned in the recent Detroit Bailout, America cannot lay down a foundation for genuine prosperity. Further, the defense of the right to private property is the most sure predictor of economic success. Again, with tax rates rising faster against the wealthiest, a disparity has arisen which can only harm our markets. Therefore, we must write and call our Representatives, Senators and the White House and demand a return to the only sure foundation to economic prosperity—before the American Dream disappears forever. Let’s recall, again, President James Madison’s wise words, “That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.

Kelly OConnell -- Bio and Archives | Comments

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico. Kelly is now host of a daily, Monday to Friday talk show at AM KOBE called AM Las Cruces w/Kelly O’Connell

Kelly can be reached at: .(JavaScript must be enabled to view this email address)

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