A History Lesson
Book Review by Jigs Gardner
Progress and Property Rights: From the Greeks to Magna Carta
to the Constitution.
Walter F. Todd. American Institute for Economic Research, 2009, ($39.00, 98 pp.)
This is a clear, succinct account of the development in practice of the idea of property rights in the West. The style is plain and cogent, never marred by incomprehensible technicalities. If you want to know how property rights grew over the centuries and how they are intertwined with other issues like taxation and representation, this is the book to read. I recommend it highly.
After a preface that quickly summarizes his argument, the author begins with a chapter on the Classical world, beginning with Genesis 23:16-17, the verses in which Abraham buys a field and cave at Machpela from the Hittite king as a burial place for Sarah (incidentally, this is much discussed in the Talmud). Todd remarks on the presence of the "principal elements of a common-law transfer of real property": voluntary exchange, agreed price, presence of witnesses, and possession and use by the buyer. The significance of the exchange is that it precludes the king taking it back, as he could have done if he had given it to Abraham.
The contributions of the Athenians and the Romans are noted, and Western Europe. The Frankish lands in the centuries after the fall of Rome and before the Middle Ages have a part in the story because there the first forms of feudal land tenure took shape, but it is to England that we must look for substantial progress. When Henry I (third son of William the Conqueror) sought support in his bid for kingship, he promised English nobles to restore the Anglo-Saxon laws that had been the basis of common-law before the Normans imposed French laws, which made it easier for the sovereign to seize estates from their rightful owners, and this was confirmed in his Coronation Charter (1101). But sovereign power is not so easily checked, witness Magna Carta, 114 years later, which determinedly placed the sovereign under the rule of law, recognized ancient English liberties, and circumscribed the king's taxing power. The next step was taken in the Leveller-inspired Agreement of the People (1647) which declared the rights of the people to be fundamental.
Chapter Four explains the ideas of Thomas Hobbes (1588-1679) and John Locke (1632-1704) about property rights. Their basic difference is that Hobbes advocated a strong sovereign and centralization of state power, believing it essential for the security of citizens in their rights, while Locke believed that rights preceded government and were threatened by it. We know how Locke's ideas, transmitted by the radical Whigs, influenced the Founder's thinking at the time of our Revolution, but Hobbes' influence was strong in some quartersAlexander Hamilton, John Marshall, Henry Clay, Teddy Rooseveltand it is pervasive today. The struggle between the ideas of these two men goes on.
Lockean ideas are traced through the Virginia Declaration of Rights (by George Mason, a month before Jefferson's Declaration) and John Adams' Massachusetts Constitution (1788), but the most interesting point in the latter is the assertion that there shall be no takings of property without the owner's consent and compensation, echoed in our Fifth Amendment. Todd's close analysis of the U.S. Constitution and Bill of Rights is a useful refresher course in the formal protections they give to property rights, protections greater than those of any other country. In his "Reflections," however, noting the bitter disagreement between Jefferson and Hamilton over the establishment of the U.S. Bank, he points out that the real worth of the Constitution lies in its interpretation and applications, as we see in the next chapter, "The Long Decline: Property Rights, the Individual, and the State."
Attention is paid to Jeremy Bentham and Utilitarianism, influential in our jurisprudence and welfare state ideology, a system of thought that is "far more willing to invade property rights in the name of the greater good than classical liberalism." A more worrisome development is corporativism, which appeared on the American scene in the 19th century with the encouragement of new corporate charters with broad powers, culminating in the interpretation of the 14th Amendment as conferring upon "corporations the same constitutional property rights that ordinarily pertained to natural persons." Today, as Todd points out, corporations have stronger property rights than individuals, as the infamous Kelo case (2005) shows. Governing elites love corporativism because of the "central planning and social control it offers." The actions of the Obama administration, subsidizing and controlling great corporate swathes of the economy, bring these ominous ideas into frightening focus.
If the contemporary scene is gloomy, we may derive some cheer from this statement by the author:
It is a never-ending quest for any free people living under a constitutional form of government to balance the tension between necessary governmental process and individual liberty.
So we can never expect "victory." The struggle for our rights and liberties can never be concluded, because, although it may seem that we are fighting against certain specific foes, we are in fact striving with profound human impulses for order, control, mastery, and so on, and we would be wise, effective (and politic) to pay more attention to those impulses in our condemnations.
This fine book will inform you about the history of property rights, and it will also make you think about the shaping of history, the influence of ideas, and the persistence of our urges for freedom and control, security and risk, order and anarchy.