Vindicating Jaffa and Property Rights

In Property and the Pursuit of Happiness, Edward Erler argues that Kelo v. City of New London is a bad ruling. This is not an especially challenging argument to make. Within some constitutional scholarly circles, it’s not even a controversial claim. What distinguishes Erler’s argument is its grandiose and labyrinthine arguments all for the sake of saying that Kelo is a bad ruling. 

The destination Erler aims for throughout the book is that Kelo is a bad ruling that effectively undermines private property. By undermining private property, the decision also wrecked the basis for the pursuit of happiness. How property and happiness are linked is the burden of the book. Erler rests this argument on a reinterpretation of the American social contract that he ultimately grounds on the Declaration’s natural rights doctrine.

By linking happiness and property, Erler hopes to heighten the stakes. If property rights are allowed to slip, then others, including happiness, are endangered too. Kelo is the canary in the coal mine.

While railing against redistributive justice, Erler fails to provide a corrective. The appeal of redistributive justice isn’t justice but that it will go a long way to providing for a happier society. Collapsing happiness into property rights, as Erler does, is based on the same bad reasoning that material goods make people happier. What’s missing from his story is an account of how happiness isn’t just a lonely pursuit for more stuff.

Kelo is the Canary in the Coal Mine

What makes the Kelo ruling so egregious, according to Erler, is its implicit rejection of the founding’s natural rights doctrine. In effect, he believes Kelo represents nothing less than a return to feudalism. How so? The administrative state—standing in for the king as universal landlord—holds all property in the “public trust.” Under Kelo, the right to property is merely “conditional” and individuals had better be ready to defend their conditionally-held property against anyone who might claim that he has a better “public purpose” for the same property. Once protection for private property is lost, Erler sternly warns, we’re in a “rear-guard action to the protect the bundle of rights,” like free speech and happiness, that the comprehensive right to property likewise protects. Redistributive justice can march apace.

Make no mistake: Kelo is undoubtably a bad ruling. But one hardly needs to present a systematic case from America’s first principles through the whole of our political history to demonstrate the shortcomings in Justice Stevens’s jurisprudence. Justice O’Connor and Justice Thomas’s dissents provide ample constitutional arguments to that effect.

Erler offers little hope other than the silver lining that the Kelo decision has brought to light the Court’s masterfully inept reasoning and that to combat it, we need to return to America’s first principles.

I like a good altar call too, but in 2020, this isn’t the sermon to get the contrite on their knees. The argument that the greatest threat to American liberty and the pursuit of happiness is the administrative state’s use of eminent domain to achieve radical redistributive justice isn’t likely to have many takers.

The “who is right about the American founding” question is still one degree removed from the truly overarching preoccupation of Straussians everywhere—what was Strauss’s real teaching?

Reflecting on redistributive justice is timely, but Erler misses the opportunity to do so. Although no longer the Democratic Party frontrunner but arguably the party’s intellectual leader, Bernie Sanders has popularized socialism especially among the young. His former competitors, Warren, Buttigieg, etc., may eschew socialism, but favor similarly redistributive policies. (Joe Biden is simply a warm body for the Democratic Party to rally around.) Nor does the Republican Party supply a proper corrective in favor of private property. Having happily used it throughout his land development career, Donald Trump is hardly the foe of eminent domain.

Lastly, it is worth noting that in Kelo, the chief beneficiary was a corporation. The effect of Kelo is to take from the haves and give to the have mores. Corporate welfare, rather than garden-variety economic justice, seems to have the upper hand nowadays.

Why Kelo is a bad ruling forms only part of Erler’s argument. Kelo’s threat becomes his vehicle for accomplishing the greater task of advancing Harry Jaffa’s later interpretation of the American founding (A New Birth of Freedom) against East Coast Straussians.

The Great Straussian Schism

Before you pick up the book, make sure you’re already well versed in the Straussian camps. This book is not for uninitiated.

Erler selects Michael Zuckert (Launching Liberalism) as his lead interlocutor with generous swipes at Steven B. Smith, Harvey C. Mansfield, and Thomas Pangle. Even dear Tom West (!), who is usually Erler’s comrade in arms, merits an entire appendix dedicated to “correcting” West for insufficiently defending the founders and blaming the progressives.

Having so many Straussians with whom to disagree, Erler’s thesis on happiness and property progresses slowly. As he advances one part of his argument, Erler anticipates the arguments and counter-arguments of his rivals. He strikes back accordingly. On top of advancing Jaffa’s interpretation of the American founding, Erler spares no effort to establish Jaffa’s credentials as the one true heir to Strauss.

The “who is right about the American founding” question is still one degree removed from the truly overarching preoccupation of Straussians everywhere—what was Strauss’s real teaching? Erler writes as if in dialogue with missing interlocutors. He knows what Zuckert says, what Pangle says, and so on. It’s like attending a Straussian panel at APSA in which the panelists all know what the others will say, but they enjoy putting on a good show for the graduate students. Lacking in showmanship, Erler’s book is weighed down with needlessly intricate counter-arguments. Instead of focusing on his case for an Aristotelian interpretation of the pursuit of happiness, Erler engages in one esoteric skirmish after another.

Here’s one example of many of Erler’s ponderous chain of arguments. Under the subheading “Locke in America,” Erler takes on Strauss’s interpretation of Locke in Natural Right and History in which Strauss effectively collapses Locke into Hobbes (Lobbes) and so that the chief difference between the two is that Locke presents a more palatable version of Hobbes’s social contract. Not only did the founders not interpret Locke that way, Erler argues it is likely Strauss did not either. Relying on Tom West, Erler claims that Strauss knowingly exaggerates Locke’s position in Natural Right for the sake of rhetorically heightening the stakes in his battle against historicism. Having saved Strauss from Lobbes, Erler is now free to attack Steven Smith for saying that Strauss’s critical evaluation of Lobbes is also his critical judgment of America. Whatever Strauss’s evaluation of Lobbes, Erler argues that it cannot be considered Strauss’s real opinion on America. Furthermore, Erler notes that Strauss, in City and Man, observed that the Declaration of Independence’s signers pledged their “sacred honor.” No followers, however indirectly, of Lobbes could rank honor above survival. Thus, Strauss must not have believed that the Locke of Natural History is the philosopher of the American founding.

That’s just four pages, and unfortunately, the whole book unfolds this way.

Erler’s lodestar is Jaffa’s observation that in several founding documents there is a “metamorphosis of Lockean ‘rights’ into Aristotelian ‘ends.’” For the founders, a government’s job was “not exhausted by the simple idea of protecting private rights, nor did they believe that public happiness could be understood as merely the aggregate of private rights without any sense of the public or common good.” Their understanding of happiness included justice, civic responsibility and duty, and the public good. Erler takes these descriptions as evidence that the founders’ view of happiness shares more with Aristotle than Lobbes.

Erler’s right that the founders invoke images of happiness that encompasses a broader view of happiness than mere protection of rights. His exploration of happiness in The Federalist Papers certainly supports that conclusion. But there’s a spectrum between Lobbes’s “joyless quest for joy” and Aristotle’s eudaemonia. To say that the founders weren’t wholly in the Lobbes camp does not mean that they were card-carrying Peripatetics. While Erler provides textual support, his argument isn’t driven by it. He does not pause to consider what the founders’ view of happiness might be based on the textual examples he provides. This is a shame. Instead, he is determined to advance the thesis that founders adopted Locke’s natural rights doctrine to serve Aristotelian ends.

Lockestotle as the Patron Philosopher of America

According to Erler, Locke isn’t Hobbes, but Locke, rightly understood, is a modern Aristotle. Aristotle and Locke differ chiefly because they faced different theological-political predicaments. If Aristotle had known of Christianity, he likely would have come to a similar social contractarian solution. Either brazen or honest, Erler declares that Aristotle’s express disapproval of contracts as the basis of political life is no insurmountable objection to his thesis. In Erler’s hands, the theological-political predicament morphs from a descriptive term to a theoretical tool to craft Lockestotle.

For Aristotle, the theological-political problem is that each city had its own set of gods and so obedience to the city and obedience to the gods coincided. What Aristotle nor any ancient political thinker could have anticipated was how Christianity and its universal God would throw a wrench into the categories of ancient political thought. The universal Christian God might command something that differs from the obligations of a particular city. Inevitable conflicts arise between civil and religious authorities.

That’s the standard theological-political predicament. But Erler argues that Christianity poses a graver obstacle to political life and happiness. For Aristotle, people are naturally political. Consequently, it is only through particular political communities that people can realize human flourishing. Cities are needed for a happy life. For the Christian, “man is by ‘nature’ apolitical” by which Erler seems to mean that since the Christian’s true home is with God, the Christian is alienated from political life. Christianity denigrates particular political communities. No earthly happiness can compare to happiness with God in heaven and so Christians are indifferent to pursuing happiness in the here and now.

Even on the subject of Aristotle, Erler intentionally overlooks instances in which happiness points beyond the city. Throughout Book I of the Ethics, Aristotle raises numerous little difficulties for maintaining Erler’s less-complicated view. Aristotle says that happiness must be over “complete life” but refrains from saying what complete is. Waiting until a person is dead to declare them happy seems counter-intuitive. But reversals of fortune at old age, like Priam’s, certainly mar a life. If bad things happen to living close relatives and friends, Aristotle wonders if they might affect the happiness of the dead. Implicitly, Aristotle wonders about an afterlife. While Aristotle shies away from saying that happiness is god-given, he affirms that it is nevertheless among the divine things. The political art is to aim towards the highest good, but Aristotle reminds us of the limits of politics. Politics cannot ensure happiness.

More should be said in defense of Christian thinkers, but it is hard do so since Erler never bothers to address a specific Christian political thinker. This is because the Christian thinker Erler has in mind is Locke. The Christian apolitical human nature Erler describes conveniently describes Locke’s pre-political state of nature. It’s a sleight of hand technique that enables Erler to suggest that John Locke is the great philosopher who reconciles Aristotle and Christianity.

The way out of the Christian theological-political predicament is Lockestotle’s social contract. The social contract limits the reach of politics from questions of the highest human goods. Lockestotle reconciles Aristotle’s insight that people need particular political communities for human flourishing with Christianity’s universalism. Lockestotle’s social contract preserves Aristotle’s teaching that humans are political animals because the inconveniences of the state of nature drive individuals into particular political communities so as to live well. The social contract affirms Aristotle’s teaching that human beings “could not exist or live well or securely without political life.” The Declaration “of course” is Aristotelian because it recognizes both the universality of all people—their equality—and their deeply human need to live well within particular political communities.

Squaring Aristotle and Locke on virtue is no small task, but Erler feels up for the job. Once again, the theological-political predicament can account for the difference between Aristotle and Locke on virtue and happiness. Given that Christianity promises eternal happiness with God, earthly happiness must aim lower. Self-preservation and calculated self-interest are good enough. No summum bonum in Locke? Never fear—the theological-political predicament can wash that pesky spot out too. You could play a drinking game every time Erler invokes the theological-political predicament, only to artificially resolve it with Lockestotle.

Still, as Erler sees it, there’s a lingering problem with Lockestotle—that the preservation of property is the main reason for political life. But this leaves all too little room for non-material goods. Madison’s bright idea is that rights are a peculiar species of property. So Madison bundles all rights, such as pursuit of happiness and free conscience, under the comprehensive right to property. You own your right to free exercise in much the same way as Petruchio enumerates his possessions: “my horse, my ox, my ass, my any thing.”

Erler collapses the right to pursue happiness into the right to property. It is a strange move given that at the beginning of the book, he labors to show that the founders had a broad understanding of happiness, and then, in the last quarter, he simply says, that the founders had a broad concept of property.

So why does Erler make this move to collapse happiness into property? Only because Kelo is a bad ruling. Erler wants to say that the Kelo ruling not only risks property rights, but happiness too. In the process, he undermines the broader American social and religious story of how best to understand the pursuit of happiness.

America’s Aristotelian Statesman, Abraham Lincoln

No book by a student of Jaffa is complete unless it includes how Lincoln is the great statesman who brings the Constitution in harmony with the Declaration of Independence. With the passage of the 14th Amendment, the 39th Congress officially codifies the Declaration of Independence in the Constitution.

Piety to Jaffa may require that Erler credits Lincoln, but the real hero of this story is Speaker of the House Schuyler Colfax. Colfax claims that section 1 of the 14th Amendment is the “gem of the Constitution” because it is “the Declaration of Independence placed immutably and forever in our Constitution.”

Colfax’s gem theory of the Constitution, however, does not fit Lincoln’s precious metals theory. Comparing the Declaration to an apple of gold, Lincoln says that the Constitution is a silver frame made to “to adorn and preserve it.” That sounds like Lincoln believes that the Declaration is already at the heart of the Constitution. Congress needs to enforce it (as Lincoln says in his Dred Scott speech), but the Declaration is already “in” the Constitution. However, Erler does not recognize any difference between Colfax and Lincoln and chalks up Lincoln’s different imagery to a preference for biblical passages.

Why does Erler prefer Colfax’s gem theory? You have to understand the problem that Erler is solving first. To him, the Constitution is fatally flawed on the question of property rights and must be transfigured by the 14th Amendment into a document worthy of America’s (and the Court’s) faithful observation. Implicitly, the tax on imported enslaved persons meant that there can be property in persons. The Constitution was a compromise and the Constitution was compromised fatally. The Declaration is needed to correct the Constitution on property. But the Declaration is thin on property and big on happiness. No matter. The pursuit of happiness rightly understood is a species of property. The right to property, which includes happiness, is rightly understood to be the comprehensive right that undergirds the Constitution. This is why the “gem” of the Declaration must be popped into the Constitution by the 39th Congress.

Erler, then, speeds through some Supreme Court cases, a history of progressivism and the Court, and, at long last, arrives at the conclusion that Kelo is a bad ruling because it invites the administrative state to use eminent domain to achieve redistributive justice in a way that would made LBJ’s Great Society blush with envy.

Despite Erler’s efforts to broaden property to include happiness, in the end, the book is still a polemic against government seizure of private property. Like the progressives with whom he disagrees, Erler prioritizes economic well-being as the foundation for happiness. Well before the Supreme Court mangled the 14th Amendment, Tocqueville observed that Americans require little encouragement to pursue comfort and material goods. Yet, Americans are restless, anxious, and always fearful of not having taken the shortest path to happiness. The deep weakness of the Declaration’s pursuit of happiness is that it’s a lonely journey. What’s still missing in Lockestotle is how friendship contributes to happiness. Under Erler’s dispensation, it’s hard to see how personal relationships that promote virtue and seeking a friend’s good as your own can be considered items within the property right bucket. Friendship cannot be easily collapsed into property, which suggests that happiness is something greater than mere property. Property refers to what is one’s own and in particular to the self, whereas goods like friendship are joyful because they can be shared.