fbpx

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 31, 2020 at 10:19:29 am

Interesting post. Beyond complicated issues have to do with Christianity and its connection to politics and pursuit of happiness, it is simply irrelevant to claim that " Kelo " is bad ruling. It is neither good, nor bad. It is simply just and correct. That's it. The test, is whether, relevant and correct legal and constitutional principles, have been implied in that controversy. Prima facie, yes ! The court has reached the conclusion, that public use or purposes, had driven that taking decision. For the rest, it is matter of policy, or constitutional amendment ( baseless per se, but suppose...) and the court, can't deal with policy. But, interpreting correctly the law and constitution in given case or controversy.

No illicit motive, has been proven here, rendering such taking, arbitrary and capricious. I quote for example from the concurring of Justice Kennedy, here:

The trial court concluded, based on these findings, that benefiting Pfizer was not “the primary motivation or effect of this development plan”; instead, “the primary motivation for [respondents] was to take advantage of Pfizer’s presence.” Id., at 276. Likewise, the trial court concluded
that “[t]here is nothing in the record to indicate that . . . [respondents] were motivated by a desire to aid [other] particular private entities.”

End of quotation:

So, careful judicial review, suggested clearly, that the main purpose, was to benefit the public as such, over private actors. So, when otherwise, to exercise taking ? Never ever ? There is no such thing as public needs ? Economic development for the greater good ? This is unreasonable with all due respect.

Thanks

read full comment
Image of El roam
El roam
on March 31, 2020 at 10:27:03 am

Just link to the ruling ( Kelo):

https://www.supremecourt.gov/opinions/04pdf/04-108.pdf

read full comment
Image of El roam
El roam
on March 31, 2020 at 12:54:42 pm

What a fine review, albeit more focused on the intricacies of intra-mural Straussians than simply the book at hand. Doing that is an extremely important service.

Straussians are obsessed with the Constitution as flawed, yet want to be deeply patriotic toward the United States. The flaw is the Constitution’s explicit recognition and countenance of slavery, which is to say, the inequality of humans.
The most obvious solution, both for Christians and non-Christians, would be to recognize the Constitution, as with all human endeavors, as flawed. Gems have flaws; dirt and disease have them as well. Correcting and adjusting to human flaws may result in improvements, but not perfection. And improvements may not be eternal but themselves need further adjustments and improvements. For some, including Straussians, that is an evil call “historicism.”

As Dr. Amato so helpfully outlines, Straussians take another approach. They posit not the Constitution but the Declaration as the summum bonum of human endeavors. Rather than accepting it as simply a “declaration” of hoped-for independence from Great Britain, it is the lodestar of human political perfection. They find not a long list of abuses and a call for political action but the “Declaration’s natural rights doctrine”.
The first problem is that, essentially, the same people who authored and approved the Declaration also wrote and endorsed the Articles of Confederation and the Constitution. How then can it be that the more substantial documents, the Articles and Constitution, lost the pristine purity of the Declaration. The Declaration was bold and aspirational. The Articles and the Constitution were serious in setting up the institutions that provided for politics and governance. Notions of “equality” and “natural rights” receded to provide for structures that provided roles where some have more power than others. The actual war for independence required generals and foot soldiers bonded together for a common purpose: not an expanse of individuals asserting their rights against all others, most notably an instituted government.

If someone in the 20th or 21st centuries AD is to be obsessed with slavery, and that particular imperfection in the policy, one then is irresistibly tempted to skip to Lincoln the Emancipator and the Civil War Amendments to the Constitution. One can then, once again, bathe in the theoretical perfection that the Declaration promised. To be patriotic to something less than perfect is, well, a kind of profound sinfulness.

Why in all this does Jaffa and Erler need to bring into focus Locke, Hobbes and Aristotle? Well, Hobbes, like Machiavelli before him, was a monster. Not much uplifting about human perfection and equality or even rights, natural or contrived. The Founders did talk about Locke. So, was he a sugar-coated Hobbesian or a modernized Aristotelian? Strauss’s limited writing about Locke suggested the former — and thus the American enterprise both modern and monstrous, even while pleasant and livable. Jaffa took the latter approach, bring in the much of Aristotle to rescue Locke and the American experiment, by raising high the “Declaration’s natural rights doctrine”.

Is this plausible? Aristotle had little to nothing to say about the “evils of slavery” and its deeply rooted inequality. He saw family, friendship and politics are central to the public good. This trinity is social, every one of them: not individualistic. The bond in a family is something far different than any Lockean natural right. Can one assert a “right to marriage” if no one else assents? Being part of Athens was more a matter of birth than a right of contract. The Greek city-states, some far better than others, was the largest polity he considered. That has little relevance today given the usual size of political entities. The more salient political question is whether a social bond that can work toward the common good can stretch across millions of people. In such a situation, is the pinnacle of politics “natural rights” to be asserted against the state or something else?

To return full circle. If the Declaration is the summit of human political endeavors and its rests on Locke who is then seen to be grounded in Aristotle, we might then expect a discussion, a speculative, theoretical exercise to be sure, but nonetheless useful: how might Aristotle view the Declaration? A right to secession from a pre-existing polity? An assertion of a “right” based in “Nature and Nature’s GOD” that can be brought to fore any time such abuses as the Declaration listed are deemed objectionable? Quick: find a secret reading of Aristotle that if you are extremely clever and wearing the right kind of glasses will wisk you away to a never-never land where the one-eyed is king.

It is said that God is amused at plans made by humans. Seems plausible. We all need amusements. If Aristotle has any way of looking down on us, he must be dying of laughter.
And it’s a good thing the Founders had a sense of “sacred honor” not well articulated by either Locke or Aristotle.

read full comment
Image of Robert Schadler
Robert Schadler
on March 31, 2020 at 14:08:05 pm

I really dislike the flippant tone of this review. Erler was writing about serious topics, and the desire to make jokes out of his attempts to discuss them does not seem worthy of his contribution. For example: Amato mocks the main topic of Erler's book by saying, "Madison’s bright idea is that rights are a peculiar species of 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.'"

Madison and Erler do not deserve mockery for that idea, but deserve to be taken seriously. Consider the possibility that "property" was meant in a broader philosophical sense than simply our "stuff," that it might mean something more like "human faculties and attributes." Begin by reading Locke again, that property includes "life, liberty and estate," and read Federalist 37's discussion of the "faculties of the mind." What you will find is a philosophical anthropology different than the we might describe it today in its discussion of these attributes in terms of "property," but not the petty Hobbesian materialism Amato casually asserts it must be without argument and with mockery of anyone who might disagree.

My inclination is to say that Amato can paint Erler to look like a loon all she wants- but who cares if he's on to the truth about our country's public philosophy. I'd rather read Erler

read full comment
Image of CJ Wolfe
CJ Wolfe
on April 01, 2020 at 21:24:56 pm

I share your view of the unwarranted shallow tone and inappropriate dismissive tenor of the book review, which is why I did not bother to dispute it.

read full comment
Image of Paladin
Paladin
on March 31, 2020 at 16:32:46 pm

Well, to me, this article is just another tedious rehash of long misunderstood principles of American government. First of all, the Judeo-Christian natural law tradition, based as it is on the existence of God as the almighty power who created the Universe and governs it by His laws, forms the bedrock of 18th Century American political philosophy. 17th and 18th Century Americans believed that God is the Author of Liberty and gave us a code of ten commandments that will, if each of us voluntarily chooses to follow, will produce a society capable of achieving and maintaining their God-given Freedom and Independence. The Founding generation did not believe that Liberty is a right to do as we please even if it causes harm to others. They believed that the rights of individuals, society and nations are reciprocal--meaning that the preservation of our own rights rests on our willingness to extend these same rights to others.

That means the right to private property and the pursuit of happiness are part of a social compact. Implicit in the Declaration of Independence and Constitution of the United States is this highest form of cooperative association--whose provenance goes back to Moses and the Ten Commandments of God. Those Commandments are an outline of our individual and collective rights, and if we know them we can understand them, and if we understand them we can pursue our happiness without causing harm to others. And if they do the same thing, we will have peace, justice, freedom, independence, prosperity, blessing and happiness. These outcomes are comprehensive, so that "peace" is not just the absence of war but also of strife at every level of society; justice is not just the outcome of a properly rendered decision of a magistrate but also of a people who value truth; freedom is not just about what we want to do but also of what everybody else around us wants to do; independence is not just about being financially well-off but also about taking responsibility for our own well-being without interference from others; prosperity is not just about material well-being but also spiritual, filial, social, and intellectual; blessing is not just about receiving God's favor but also about the multiplication of His favor among everyone around us; and happiness is not just about enjoyment of those blessings but also the effects of our own well-being, contentment, prosperity and joy upon everyone else around us.

To understand the Cause & Effect difference in outcomes between our obedience or disobedience to God's commandments, just imagine what would happen if everybody obeyed them to their best ability. Now imagine what would happen if everybody didn't.

One of the things we learn from this exercise is Wisdom. Another thing we learn is Virtue. The Founding generation set great store on both and based the exercise of both on the wisdom of the Ten Commandments and the virtues instilled by our exercise of them. Both Moses in Torah and Jesus in the Gospels emphasized these teachings which became the foundation of Western Civilization with the rise of the Christian Church which took them out into all the world. The Founders had received these commandments from their parents' and handed them down to their children. And in their writings they expressed their anxiety that as Americans exercised their rights they would prosper materially and forget God's Law, become corrupt and lose their inheritance of Liberty. They believed that once lost we could never get it back.

To understand the wisdom of God's Law, I recommend that you very carefully read the Ten Commandments. It is given in Exodus 20 and Deuteronomy 5. Some authorities say they contradict one another, but if you know Jewish biblical tradition you'll understand that they were given first at the beginning of Moses leadership and then 40 years later at the end of his life to God's people. He knew their strengths and their weaknesses, and he fine-tuned his commentary so they would be able to walk in the way of God's commandments and not go off course. In Exodus, God tells Moses the certain effects of obedience and the certain effects of disobedience, which means the blessings that come from obedience and the curses that come from disobedience are not consequences of some Divine whimsy--as with pagan godsend goddesses. Instead, they are absolute and apply equally to everyone regardless of their status, and the Creator of the Universe will hold us accountable. This is where the Founders got the idea that to be just, man's laws must be consistent with God's law. In Deuteronomy, the Tenth Commandment adds land to the list of items belonging to our neighbor that we are not to covet, or steal, or obtain through fraud or violence.

This is the biblical authority against the ancient custom of tyrants called "eminent domain"--seizing of private property by government for another use without payment. English Common Law protected private property by requiring payment to the owner, but even then it was often a mere pittance. Many Americans wanted to prohibit eminent domain altogether, but there was a controversy about the subject and in the end, the Bill of Rights created a new classification of eminent domain--taking of private property for public use with just compensation.

In the old days, eminent domain was not often exercised, but in the early 20th Century Congress passed a Veteran's Housing Act that used both public money and eminent domain for private use. It was a colossal failure but Congress revised it for a federal program to build communist worker housing for poor people in inner-city slums on the East Coast. That was an even bigger failure but once again Congress resolved its embarrassment by passing the Housing Act of 1949, the law that made the federal program we know as Redevelopment possible.

Congress turned the responsibility for administering it over to the States who were empowered to grant cities and counties authority to exercise its many powers. Not the least of which is to use of public money and eminent domain for private development projects. This is the law that was never once mentioned during the famous eminent domain abuse case of Kelo v. New London. I'm not sure the U.S. Supreme Court justices had ever heard of it. But, they based their ruling on the infamous eminent domain abuse cases of the past all of which relied on the Housing Act of 1949. That Act gave government officials the excuse they needed to overturn the Fifth Amendment, the invoking of Martial Law: A declaration that blight is an imminent threat to the health & safety of the American people, like an invasion by a foreign enemy, a natural disaster, or the Coronavirus.

This means that Redevelopment Law is not only an abuse of the U.S. Constitution and Bill of Rights, it is a violation of the Ten Commandments and all the teachings derived from them.

For example, the ancient summary of the Two Tables of the Law says we are to love God and love our neighbor. To love God is to trust Him. And if we trust Him we will trust in His wisdom and we will trust in His Laws. We will be persuaded that our obedience to His commandments will have good outcomes. Now if we obey His commandments we will be showing respect for our neighbor's God-given rights which will automatically have good outcomes. And lo and behold, we will see the fulfillment of His Will unfolding before our eyes. Back in the Founders' time, America was an unusually free and independent place to live despite the fact that until 1776 it was governed by the British government from their headquarters three thousand miles and two months away by sea. Because most everyone believed in the existence of a higher power who wanted them to be safe and happy, and society prized the Ten Commandments as the very thing that made Peace, Liberty and Prosperity possible crime and unemployment were low, food was in abundance and necessities were inexpensive, it was easy to start up a farm or a trade, and if you didn't like the church you were brought up in you could attend another one. Or, in some colonies, none at all. And so they wished their children to know their duty to God and their neighbor. America's young people learned the following jingle at home, at church, and at school:

"Love the Lord with all your soul & strength,
with all your heart & mind;
and love your neighbor as yourself,
be faithful, just and kind."

Americans also saw that Liberty is also linked to the Ten Commandments by way of the Golden Rule, a principle that came out of the earliest human societies, developing as hunter-gather bands themselves developed into tribes, cities, states, nations and finally civilizations. The Golden Rule is universal to human society and exists in some form in every one of the world's great religions and philosophies. The Greeks gave us its common form: "Do unto others as you would have them do unto you." And even though they were pagans they believed the Ten Commandments was the only code of morality capable of producing the high level of Virtue required for Liberty.

The Judeo-Christian tradition links the Golden Rule directly to the Ten Commandments:

"What is hateful to yourself, do not do to others. This is the whole of the Law. All the rest is commentary."
Rabbi Hillel the Elder
Ist Century B.C.

"In everything, as you wish that men would do to you, do ye likewise even so unto them, for this is the Law and the Prophets."
Jesus of Nazareth
A.D. 1st Century

To see the connection to the Founders' view of the world, read the confessions of faith of the Protestant Churches in 17th and 18th Century North America. And then re-read the Declaration of Independence from the beginning very carefully, and the Constitution, and the Bill of Rights. Now it is possible to see that in the view of the Founders and their generation, Liberty and property and the pursuit of happiness have a social dimension based on the Laws of God and Nature. Which means property rights are not only just about what you want to do to enjoy the things you can claim as your own. They are also about the limits of your enjoyment in relation to your neighbors. For their rights are equal to yours, and just as you would not want any of them to cause harm to you in their enjoyment of their property, you have no God-given right to cause harm to them by the use of yours.

John Adams defined Liberty as "a power to do as we would be done by" for good reason. America is a country where the government derives all its power from the people. But, if we the People no longer look to the source of our Liberty for our authority, then American government cannot protect us from ourselves and we'll lose our Liberty forever--unless a future generation picks up the Laws of God and lives by them, and is able to build a society capable of securing our Liberty.

The Golden Rule makes Liberty possible. And the Ten Commandments are based on the principles of the Golden Rule. And these commandments are easy to remember. You can memorize them. You can teach them to your children. You can use them to help make clear why Common Courtesy is the necessary social virtue for showing other people that you respect their rights and dignity.

Just as they would like others to respect theirs.

This is why Samuel Adams said "We may look up to our Armies for Defence, but Virtue is out best Security."

And John Quincy Adams said "Duty is ours, the results are God's."

The powers of the State are just only when they are consistent with the Laws of God. And it is the People who must live by the laws of God or we will be forced to live by the laws of tyrants.

read full comment
Image of Karen Renfro
Karen Renfro
on April 25, 2020 at 10:06:59 am

Ms. Renfro, I have just now read your extended comment, to which I say thank you and Amen.

It would appear that God has blessed you with the desire to acquire historical and Biblical knowledge, the kindness to share what you have learned and, nowadays, the courage say it.

read full comment
Image of Paladin
Paladin
Trackbacks
on April 24, 2020 at 06:28:32 am

[…] am grateful to Professor Elizabeth Amato for reading my book—no easy task; but I am disappointed that she didn’t read it with care. The lack of […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.