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Private Property and Government: What Does the Constitution Say?

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Published on: March 19, 2021

The economic concept of private property refers to the rights owners have to the exclusive use and disposal of a physical object. Property is not a table, a chair, or an acre of land. It is the bundle of rights which the owner is entitled to employ those objects. The alternative (collectivist) view is that private property consists merely of a legal deed to an object with the use and disposal of the object subject to the whims and mercies of the state. Under this latter view, the state retains ownership and may at any time regulate or even repossess the property it temporarily cedes to individuals.

The Founding Fathers upheld the economic view of property. They believed that private property ownership, as defined under common law, pre-existed government. The state and federal governments were the mere contractual agents of the people, not sovereign lords over them. All rights, not specifically delegated to the government, remained with the people–including the common-law provisions of private property. Consequently, the constitutional rights regarding free speech, freedom of religion, the right of assembly, and private property rights are all claims that individuals may hold and exercise against the government itself.

In brief, private property refers to the rights of owners to use their possessions which are enforceable against all non owners–even the government.

Our American forefathers did not develop their political theories in an intellectual vacuum. More than a century before the American Revolution, a Civil War raged in Britain. It pitted the Monarchy against Parliament. Among the opponents of the Monarchy were the seventeenth-century English Whigs. Over the course of a few decades, English Whig intellectuals expounded their theories about property and government. These thinkers, including John Locke, Algernon Sidney, and Thomas Gordon, taught America’s founders much about property and government.

Prior to the rise of the English Whigs, the “divine right of kings” had held that all rights, liberties, and properties actually belonged to the king. The king merely permitted his subjects to use their possessions. The king, however, might regulate the use or even seize these possessions outright at his whim. The people had no claims or rights which could be exercised against the sovereign. Their possessions were at the mercy of the government.

By contrast, the English Whigs believed that the fountainhead for all rights was the sanctity of the individual, not the divinity of the state. John Locke contended that human rights were “natural rights” which pre-existed government. The original owners of the land were the real sovereigns, not the king. Remember the old English saying, “A man’s house is his castle and every man is king.” Legitimate government is formed by contract and may never acquire more rights than delegated by the property owners who institute it. The authorities must never exceed their narrow constitutionally delegated authority–lest they become despotic.

According to the Whig view, legitimate government is an agent, a servant, a mere convenience charged with certain specific tasks. Moreover, even elected governments tend to become despotic as the British Parliamentary experience illustrated. Most of the descriptions of political power during colonial times were negative. Power was often shown as a “clutching grasping hand” or described as a “cancer that eats away at the body public.”

It is also relevant that the Whigs expressed all rights in terms of property. Each man owned his own person and labor. Slaveholders were condemned as “man-stealers”, the lowest sort of thief who stole the whole person, not merely part of his labor.

Whenever the Whigs argued for freedom of religion, the teachers of our forefathers referred to “property in one’s conscience.” When they opposed Sabbatarian laws, prohibiting certain activities on Sunday, they referred to “property in one’s time.” The Whig view equated property and liberty, once again reflecting the economic concept that property refers primarily to freedoms to act.

The best way to examine the importance of private property to our forefathers and its place under the law is to study the words of the founders and framers themselves: men like Thomas Jefferson, James Madison, and Alexander Hamilton. Jefferson argued that the colonial landholdings had always been held free and clear of the British crown. Throughout American colonial experience, the British crown exacted a small fee called a quit-rent upon all landholders. The quit-rent often went uncollected and never raised much revenue, but it remained on the books as a legal assertion that all land titles were held subject to the crown.

In 1774, Jefferson disputed this kingly claim. Jefferson’s reasoning gave historical teeth to the Whig view that sovereignty belongs to individuals and that property pre-exists government. Therefore, the United States government, formed two years later, would be established by free men, not serfs. Neither could the new government claim to be the recipient of any superior monarchial rights or claims to private landholdings. 

Six of the ten amendments pertain either directly or indirectly to private property rights. The most explicit recognition of private property comes in the Fifth Amendment which states “Nor shall [anyone] be deprived of life, liberty, or property without due process of law; Nor shall private property be taken for public use without just compensation.”

Read full article at FEE.org by Gary Pecquet. Published with permission. 

The Language of Liberty series is an outreach project of Center for Self Governance to educate citizens in the principles of liberty. The views expressed by authors are their own and may not reflect the views of CSG.

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