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Property and the Pursuit of Virtue

I 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 careful reading has indeed led to some amusing results.

Professor Amato writes that my purpose in writing Property and the Pursuit of Happiness was to prove that “Kelo is a bad ruling that effectively undermines private property.” She agrees that Kelo was a bad ruling but points out that it was hardly necessary to write such an elaborate argument to prove it since “Justice O’Connor and Justice Thomas’s dissents provide ample constitutional arguments to that effect.” I agree that both dissenting opinions articulated strong constitutional arguments in favor of the right to property, but Professor Amato is wrong to suggest that my treatment of Kelo was the terminus ad quem of my book. It was intended to address a larger point and to provide a more radical criticism of the majority opinion than the dissents of Justices O’Connor or Thomas.

Throughout the book I had made several references to William Blackstone. Blackstone had argued that it was a fiction of the common law—albeit an altogether necessary one—that the king was considered as the universal landlord. That is to say, the king was the sole owner of property in the realm and that all use of his property was parceled out to various nobles on terms and conditions (the payment of taxes, furnishing of troops, or supplying other services when demanded). Nothing was possessed as a matter of private property but occupied only as long as the terms and conditions were met. According to Blackstone, this preserved the feudal relation of master and servant.

This feudal form of property had clearly been abolished by the recognition of the natural right to private property that was articulated by Locke and adopted by the American Founders. What I saw in Kelo was the culmination of a long development that began with Progressivism and manifested itself in the Supreme Court’s transmogrification of the Constitution’s “public use” clause into the more expansive “public purpose” clause. Kelo had allowed the transfer of property from one private owner to another by eminent domain on the bare speculation that the new recipient could serve a more extensive public purpose by the proposed use of the property than the original owner. Thus, it was clear that the original owner had, in the majority’s view, held the property only as a public trust, conditioned on the fact that he would use the property to serve the largest conceivable public purpose. Government had thus become, in the Court’s irrefragable logic, the universal landlord once again. One prominent Progressive legal scholar wrote in 1938 that in the “case of feudalism it is regrettable that there could not have been preserved the idea that all property was held subject to the performance of duties—not a few of them public.” This turned out to be a prediction of what actually happened in Kelo—the feudal idea was preserved! In this modern recrudescence of feudalism, the only difference was that the king had been replaced by the administrative state as the universal landlord. Anyone who followed my argument can readily see that the crisis we face is not the comparatively trivial one of restoring the “takings clause” to its rightful constitutional place.

Happiness is Not Economic Well Being

Professor Amato is simply mistaken when she writes that “Erler prioritizes economic well-being as the foundation for happiness.” I maintained throughout the Founders’ comprehensive view of property. As James Madison argued in his famous essay “Property,” directed in large part against Blackstone, property includes the goods of the soul as much or more than it does those of the body. Of course it includes land and other tangible goods, but more importantly it includes the right to express opinions, freedom of religion, the “sacred rights of conscience,” the right to be free from government monopoly, the right to choose an occupation, as well as other privileges and immunities essential to free citizens. Thus, an attack on the right to property was at one and the same time an attack on freedom of speech and the free exercise of religion, to say nothing of the rights of conscience and other essential rights.

Does anyone doubt that the minions of the administrative state have directed their particular ire at the suppression of these fundamental rights—most particularly free exercise of religion and freedom of speech—as an aspect of their attack on property rights because they stand as an impediment to the magnification and extension of its power?

As I demonstrate in an elaborate argument, the Founders regarded the “pursuit of happiness” as both a right and a moral obligation. I hardly think that they believed, any more than I (or Aristotle), that “economic well-being was the foundation of happiness.” Nothing I wrote in Property and the Pursuit of Happiness could possibly have given rise to that conclusion.

My main purpose in writing Property and the Pursuit of Happiness was to defend the American founding against the growing number of conservative critics who argue that the Founding was radically modern, the product of Enlightenment rationalism, and therefore deserving of contempt. It is true that the Founders adopted Locke’s view of property as essential to the regime principles they were establishing. But the Founders adopted a more expansive and dynamic idea of what constituted the right to property. This is indicated by the fact that the Declaration specifies, not a natural right to property, but the “pursuit of happiness,” indicating that the right to property was a necessary but not sufficient condition of happiness.

How the Founders Read Locke

Contrary to Professor Amato, I never argued that “Locke, rightly understood, is a modern Aristotle.” Lockestotle exists only in the Professor’s perfervid imagination, not mine. Nor have I argued that the Founders were Aristotelians. It is possible for wise statesmen to make prudential judgments that meet the requirements of natural right without being Aristotelians. But the exoteric Locke—the Locke the Founders read—is easily read as a salutary political teaching supported by “an unbroken tradition of perfect respectability that stretches from Socrates to Locke.” The Founders obviously read Locke’s Second Treatise, but as statesmen and legislators, not as philosophers. But they read it carefully and undoubtedly took notice that a treatise devoted to the articulation of natural rights—principally the private right to property—begins (in paragraph six) by invoking the obligations of the law of nature. Since this invocation occupies such a prominent position, it would be easy for the Founders to conclude that in the Lockean schema obligations are prior to rights; they were certainly aware of Locke’s insistence that the obligations of the law of nature are always binding, both in the state of nature and in civil society. Those who argue that the Founders were Enlightenment rationalists are simply mistaken when they argue that the documents of the Founding presuppose that obligations are derivative from individual rights.

The Founders also read in An Essay Concerning Human Understanding, Locke’s description of the “pursuit of happiness” as “our greatest good” and as a moral obligation that at one point he avers is “a perfection of our nature.” This Aristotelian language occurs in the longest chapter of the Essay entitled “Of Power,” a chapter which surprisingly enough is explicitly devoted to moral responsibility. The Founders easily concluded from their reading of the Treatise and the Essay that “the pursuit of happiness” was both a right and a moral obligation. A perfect example of this can be seen in this familiar passage from George Washington’s First Inaugural: “There is no truth more thoroughly established, than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness.” This statement delineating the natural connection between virtue and happiness is, of course, perfectly Aristotelian. Thus Washington—and Madison who wrote the speech—understood the “pursuit of happiness” to mean the pursuit of virtue.

And it is surprising to learn that this statement of Washington’s was a close paraphrase of a passage from Book I of Locke’s Essay. Madison, if not Washington, was well acquainted with the Essay, and it is easy to see how these two enlightened statesmen were led by the pressure of events to an understanding of Aristotelian natural right through a reading of Locke.

I attempted to demonstrate that the American regime at its inception was not radically modern. It was not, as some of its most strident conservative critics contend, a product of Enlightenment rationalism. I believe I demonstrated that the American Founding contained Aristotelian elements of natural right that insulated it from the corrosive effects of modernity, and that the Founders were led to those Aristotelian elements through a reading of the exoteric Locke. It was the undermining of the Founding by Progressivism and a compliant Supreme Court that led to the rise of the administrative state and the constitutional crisis that we currently face. The defense of the Founding is, I say, almost certainly our only chance to preserve constitutional government.

Reader Discussion

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on April 24, 2020 at 13:34:38 pm

I think Erler gets Madison right here. I have additional reasons to think so, since teaching a course this semester about the 1st amendment freedom of speech. I tried with my students to basically lay out every possible philosophical argument for free speech that has been put out there:
-Mill's arguments that considering all ideas gives the brain a kind of exercise
-OWH's argument that a free marketplace of ideas would allow the strong ideas to survive
-Meikeljohn's argument that a free speech right is derived from popular sovereignty, that it's actually a right of the people to hear all the options of public policy.
-The related argument of some founders that criticism of the government is necessary, so free speech must be a right.

While all of those sound plausible, none of them really fits with what the consensus of the Founders said about "the freedom of speech" being a natural right. The argument that freedom of speech is part of the natural right to property is the only one that makes sense, given the paradox that they believe there is such a thing as "licentious speech."
John McGinnis, Tom West, and Ed Erler get this- and almost all the other Founding scholars do not. Thank you for publishing another piece on this topic, Dr. Erler.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4905&context=uclrev&fbclid=IwAR1Kl4uRZRg_9O-0NGsMXJf-5ltpg3_JPHBuaHWLblXyRJw-0lkBZu6LzYQ

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CJ Wolfe
on April 24, 2020 at 14:05:59 pm

CJ:
OK!
As Madison argued, there is a property right in our rights.

Question:

"...paradox that they believe there is such a thing as "licentious speech."
Why a "paradox."
The Founders recognized that a) there were proper restrictions placed upon the use of one's property and b) given their emphasis on the need for a virtuous citizenry, why would they not deem a limitation on licentiousness speech to be both "necessary and proper" (the Great chief rolls over in his grave with that one).
As Tom West has argued their emphasis on morals / virtue was quite extensive.

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gabe
on April 25, 2020 at 11:40:35 am

I chose not to respond to Amato's scornful review of Erler's "Property and the Pursuit of Happiness" because the book is serious and the review is not. As an abiding moral principle and a reliable political tactic in the culture war I think it unwise to dignify the ideologically-motivated with the intellectually-consequential.

Yet, I am grateful for Professor Erler's reply; it avoids the pitfall of exalting Amato's snark while elaborating helpfully on Erler's essential theme. As Erler says, "The defense of the Founding is... almost certainly our only chance to preserve constitutional government."

I fail to see why some conservative scholars would, on the one hand, seek to preserve the virtues of the Declaration, the constitution and of constitutional governance while, on the other hand, they would disinter the dead notion of the "Founding as the American Enlightenment" and seek to resurrect the tiresome, old theme of Gary Wills, a pop-culture trope of the counter-culture Left which undermines the very goal of conservatism.

Knowing in our culture war how best to defend the Founding is a matter of moral wisdom and of political skill. It is an existential matter which, sadly, has yet to be learned by many conservative scholars and most conservative politicians who suffer from a preternatural attraction for circular firing squads.

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Paladin
on April 25, 2020 at 21:20:57 pm

In responding to the incorrect accusation that his book "prioritizes economic well-being as the foundation for happiness," Professor Erler both agrees that the Founders' expansive view of property included other unalieanble rights but adds that "... the Founders adopted a more expansive and dynamic idea of what constituted the right to property," "the pursuit of happiness" for which "the right pf property was necessary but not sufficient."

I am not qualified to argue the expansive point about the pursuit of happiness. Yet, nevertheless, I wonder if by broadening the argument Erler risks ceding the point to Amato as to whether our unalieanable, constitutionally-protected rights do, in fact, include property, the right to earn and own economic wealth, and that property warrants equal cultural respect and constitutional protection.

If one accepts the Progressive (and Marxist) notion that the acquisition of economic wealth is mere materialism and serves the primary if not sole purposes of personal comfort and more materialism, then Amato's argument about prioritizing economic well-being is strengthened. But the Founders were Biblically-educated, and the Bible greatly informed, indeed, infused their thinking about politics. Christianity views material well-being and property teleologically, as having an ultimate goal which provides meaning and direction to the acquisition and use of private property. Property, properly understood is, thus, as with other unalienable natural rights, a means to human flourishing.

Seen in that perspective, as a means to human flourishing and not mere crass materialism, property assumes an elevated status and the bifurcation of unalieanble rights into a priority category consisting of natural rights tied to political and religious liberty and a secondary, inferior category, the right of property, makes no historical sense and should be seen as the consequence of myriad acts of arbitrary, historically and constitutionally ill-informed decision-making by the Supreme Court.

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Paladin
on April 26, 2020 at 22:02:56 pm

It has been a while since I struggled through the 17th Century phrasings in Locke’s 2nd Treatise, but I do recall I was taken at the time by his assertion that a man’s property would also include his life and liberty, not merely materialistic artifacts. I was able to find the following, which may bolster your comment about a human flourishing view of property.

Chapter V: Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. [Here I had added a comment “excluding any considerations of an attached fetus as a separate person and body”.]
Chapter V: Sec. 44. From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; …

The DOI extracted the more exalted portions of property and left the conventional material definition as dross to be considered elsewhere, even as the Constitution did also address securing rights to our intellectual property 11 years later.

On April 25, 2020 At 11:40:35 Am you also said: “… they would disinter the dead notion of the ‘Founding as the American Enlightenment’ …" Can you clarify how it is considered a dead notion, as my exposure to this idea came from Gertrude Himmelfarb’s The Roads to Modernity: The British, French, and American Enlightenments. If I remember correctly she was suggesting there were elements shared among two or three versions, but also significant distinctions among them. I had understood the Founders more radical ideas concerning rights and equality came from the continent while the more sober considerations of controlling power with checks and balances, etc., evolved from British legal structures and the common law. Thus a still unique melding and mixing in America. What am I missing?

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R2L

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.