William Yeatman
Within our constitutional framework, property rights have been relegated to second-class citizenship.
Take the Supreme Court’s double-standard on the Fifth Amendment’s prohibition against the government “taking” private property unless it’s for “public use.” For alleged infringements of other guarantees in the Bill of Rights, the Court “strictly” scrutinizes government action. But with the Fifth Amendment’s property protections, the Court allows legislatures to interpret their own constitutional boundaries. If “only” property rights are at stake, then the fox may guard the henhouse.
Or consider the Court’s amorphous review for “substantive due process,” a values-based inquiry into the constitutional legitimacy of state and federal regulatory laws. On this score, the Court candidly concedes that property rights and contractual freedoms enjoy less protection than other, non-economic liberties.
In his new book Property and the Pursuit of Happiness: Locke, the Declaration of Independence, Madison, and the Challenge of the Administrative State, Edward Erler shows how constitutional property rights climbed through the looking glass and came out topsy-turvy. From America’s founding era to the present day, property rights flipped from cachet to low-caste, and what’s supposed to be up, well, is down.
Erler is a professor of political philosophy, so it’s unsurprising this book’s foremost contribution is its discussion of the vital role property rights played in the Framers’ constitutional vision. Tracing an arc of political thought from Aristotle through Locke on to the Declaration of Independence, Erler argues that the Founding Fathers put an inherently American gloss on pre-existing conceptions of property – one that merged natural rights and moral obligation into a synthesis they called “the pursuit of happiness.”
For the Founders, the right to property was the “comprehensive right that included all other rights.” In this spirit, the Supreme Court in 1795 averred that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and unalienable rights of man.”
Erler explains the decline of property rights from these sanctified heights. As the economy advanced and governments grew, vested property interests came increasingly into conflict with public policy, and it fell to the courts to demarcate the boundaries between public and private spheres.
For much of our nation’s history, as courts wrestled with these controversies, they hewed to an understanding of property rights closer the Framers than what we see today. The practical result was that property rights enjoyed considerable constitutional protection from overbearing government.
But the scales of justice shifted early in the twentieth century, when “the Progressive forces of history” swept first into legislatures and then into the courts. Progressives rejected the Founders’ conception of property rights because it impeded the “science” of economic planning. As Progressive influence waxed, property rights waned.
Although Property and the Pursuit of Happiness overlaps in subject and tone with Richard Epstein’s excellent 2008 book, Supreme Neglect: How to Revive Constitutional Protection for Private Property, the two books are complementary but not the same. Discussion of the Founding Fathers is largely absent from the latter—arguably the only flaw in Epstein’s seminal work—and this topic is Erler’s strongest contribution.
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