The Unalienable Right of Property:
Its Foundation, Erosion and Restoration
by Richard A. Huenefeld
III. The Challenge to Secure the Unalienable Right of Property
Beginning in the late 1970’s and developing through the 1980’s, new scholarship has arisen placing its emphasis upon a reevaluation of property rights. This new scholarship is the product of such sources including the Chicago School, Richard Epstein and Ellen Frankel Paul. The concern focuses on the extent of government power and on efforts to restore property rights by reexamining the various property theories. Nevertheless, these efforts still reject the foundation of the laws of nature and of nature’s God. As a result, these scholars offer little to secure unalienable property rights. This presents the challenge to return to the true foundations expressed in the Declaration of Independence.
The earliest phase of contemporary scholarship was spearheaded by the “Chicago School.” The political science of the Chicago School was a direct outgrowth of the Progressive era. Progressive reform was modified by use of scientific empirical inquiry. The rights of man were to be premised upon a rejection of traditional moral principles in favor of a scientific approach to reform. The facts revealed the right. Facts were interpreted in light of power. A particular balance of power between the state and the individual must be attained in the process of social control and redistribution of property.174 The Chicago School attempt at reform was in error because it rejected the laws of nature and of nature’s God. Scientific theory still leads to increased civil power and the usurpation of unalienable rights if not interpreted in light of the laws of nature and of nature’s God.
Besides the Chicago School, the primary alternatives consist of the occupation theory, the labor theory, the contract theory, the natural rights theory and the social utility theory. Modifications of these theories are frequently supported in casebooks. However, each one leads to the typical power position, which is then supported in the casebooks with a history of feudalism.
The occupation theory is also known as a theory of possession. The assertion is that the simple fact of occupation or possession justifies ownership. The main problem is that mere assertion of a right is not sufficient to create the right. Even if we admit the validity of the right, it would exist only temporarily so long as occupancy or possession was maintained.
The labor theory has already been addressed. The main claim is that a person has a moral right to ownership and control over the fruits of his labor. It is not logically sound to hold that mere expenditure of labor justifies exclusive ownership. Also, if no labor is expended in order to acquire a gift, it cannot be consistently maintained that the recipient of the gift is entitled to ownership.
The contract theory alleges that private property is the result of a contract between individuals and the community. This argument assumes that there was no possible property right prior to the establishment of civil society. This theory is unsupported by fact.
The natural law/natural rights argument is deceptively similar to the laws of nature and of nature’s God position. However, the natural rights theory relies solely upon man’s ability to reason without the aid of Scripture to determine whether the theory is consistent with fixed, uniform and universal truth. To refute this theory, it is enough to point out that reason and experience alone are not always consistent with truth.
The social utility theory argues that law should promote the maximum fulfillment of human needs and aspirations, and that legal protection of private property promotes such fulfillment. This is the position of Bentham and Posner. The facts and conditions of society may change, however, such that the most efficient way to promote human fulfillment is to have the civil power mandate total factual equality. No person would be secure in his right.
Richard Epstein is a contemporary scholar who has sought to secure property rights.175 His foundational argument is a critique of John Locke. He asserts that the Lockean labor theory is problematic because it assumes that God gave the earth to mankind in common. “The proper position would have been reached if Locke had dispensed with the idea of divine justification for private property and had adopted the traditional common law view of the original position.”176 According to Epstein, Locke was not wrong because of his common ownership theory. Locke was wrong because he did not rely upon the theory of possession. But Locke was even more incorrect, according to Epstein, because he tried to find a divine justification. He was wrong for trying to rely upon the laws of nature and of nature’s God.
Epstein’s position reveals that contemporary scholars are not beginning with the right foundation. This should not be surprising in light of Epstein’s statement that in the final analysis, no system of property rights may be ethically defensible.177 Therefore, while it may not be absolutely correct, the labor theory is sufficient to protect private property. This theory, as already noted, is premised upon a power theory. Epstein’s acceptance of the occupation or original position argument of common law is also a theory premised upon power.
Epstein’s rejection of God as the source of property right has weakened his ability to analyze Locke’s position. Epstein did not adequately address the notion of common ownership. Locke’s position was inaccurate. God did not grant common ownership. He granted authority over portions of His Creation to individuals in the family context. All that anyone has is a gift from God and not a result of one’s labor or first occupation or possession. As a result, no civil government has ultimate or superior title to the property that has been granted to a person.178
Ellen Frankel Paul is another modern scholar to address property rights.179 Like Epstein, she seeks to rescue individual property rights from the expansion of eminent domain and police powers. She seeks to do so within the context of a more carefully defined natural rights theory. One reason for this beginning point is her assumption that the American system was built upon a natural law philosophy.180 The fact is, however, the Founders did not rely upon reason alone but looked to the laws of nature and of nature’s God. The Founders were not merely natural law philosophers.
A major problem with the new natural law argument is the assumption that all rights are derived from man’s need to survive.181 Her natural law argument also allows for the adoption of feudal principles such as eminent domain because they are implicit within natural law theories. There is no discussion of the rejection of feudalism. There is no discussion about rights being God-given. There is no recourse to the laws of nature and of nature’s God rather than natural law. As a result, Paul is left with an argument premised upon power.
The contemporary scholars fail to secure the unalienable right to property; they simply modify the erroneous theories that are premised upon power. Despite their concern over the use of civil power, their only arguments are balance-of-power arguments. As the balance of power continues to shift away from the individual, there is an increasing loss of liberty.
The primary theories and the modifications of them do not secure the unalienable right of property. Any right to be enjoyed under these theories would be merely temporary, granted by an all powerful government. Nevertheless, reliance upon these theories remains prevalent. There is, however, no reliance upon the Declaration of Independence or the laws of nature and of nature’s God. There is merely an assumption that civil governments inherently possess supreme power to control all property.
Contemporary scholarship, rather than returning to the laws of nature and of nature’s God, has simply modified ideas that violate unalienable property rights. In the meantime, actions of civil government continue to threaten rather than secure unalienable property rights. The continuing threat to unalienable rights is evidenced by the continual transfer of property and rights to the civil powers for redistribution. The distinction between public and private is increasingly blurred. Numerous administrative agencies outside the constitutional framework are established to oversee the efficiency of the redistribution system. Dependence upon the state is increased by threatened revocation of benefits and privileges. The whole system is to secure the public interest,” the interest of the state.182
Efforts to secure the public interest are carried out primarily by the claims of eminent domain and the exercise of police power. The previously noted works by Richard Epstein and Ellen Paul both address these issues in detail. It is sufficient for this work to point out that both are premised upon coercive power. Eminent domain assumes that the civil government has preeminent power over all property within its domain. The fifth amendment to the United States Constitution is considered the source of this power and obligates just compensation for a taking. The police power, on the other hand, is exercised in the name of the public interest and is not bound by a just compensation requirement. Contemporary scholars are properly concerned about this power. It is becoming the principal means for attacking property rights because it can be arbitrarily exercised and does not require just compensation.183
Within a system seeking to secure the public interest by use of power, the state is the ultimate owner and controller of all property. Even occupations and wages are subject to arbitrary regulation. People become mere civil servants as an essential aspect of the government controlled work force and economy. A few general examples will evidence the logical extension of civil tyranny once the unalienable right of property is no longer secure.
If a person has property, he may choose to contract some of it away. He may seek to exchange it with another person who has property in something else. The pursuit of happiness by free contractual exchange is only possible if both parties have property rights. Without property, there is no contract. If property rights exist merely by the grace of the state, the right of contract is equally dependent upon the state. The civil government becomes a party to every contract in order to insure good judgment and fair exchange. The right to contract is equally violated when the unalienable right of property is violated.
Religious liberty is also threatened by violations of unalienable property right. If property is a function of civil power, the civil ruler controls all property and may confiscate it or regulate it as deemed necessary. Church property may be confiscated or regulated to the extent that it is impractical to use it. Homes and land may be confiscated or regulated in order to prevent individuals from gathering for prayer meetings or Bible studies.
Perhaps the greatest attack on liberty related to property right is the violation of the unalienable right to life. It may be claimed that all property impacts commerce in some way and therefore is subject to regulation. The life of a person may arguably impact commerce. An elderly person may influence commerce by needing medical services, welfare or social security. If the impact becomes too great, it may be necessary to encourage euthanasia to eliminate the negative impact on commerce. Similarly, the unborn child impacts commerce, education, welfare and social security. If the burden becomes too great, enforced abortion may become necessary. Life is threatened by the violation of property rights.
As a result of the violation of the unalienable right of property implicit within the pursuit of happiness, all aspects of life are equally threatened. The all powerful state premised upon power, seeks to control every aspect of property. All of life becomes subject to state control. The result of denying the unalienable right to property is the complete subjection of the individual to increasing civil tyranny. We must return to the Declaration of Independence, the laws of nature and of nature s God, and unalienable rights.
The Declaration of Independence expressed certain self-evident truths; namely, that all men are created equal; all men are endowed by their Creator with certain unalienable rights, some of which are life, liberty and the pursuit of happiness, including property; governments derive their just powers to secure unalienable rights by consent of the governed; the people retain the right to alter or abolish any form of government which becomes destructive of unalienable rights. The principles reveal a world view which fosters property rights.
Immediately apparent from the Declaration is a recognition of the laws of nature and of nature’s God. This speaks of fixed, uniform and universal rules of action established by God. The laws of nature and of nature’s God are the source of the unalienable rights of mankind. Civil governments are bound to secure those rights, including property.
The Declaration expresses the principles which are the norm for civil government in the United States. The struggle, historically, was to establish a form of government consistent with the norms. Herein lies the failure of the Articles of Confederation. In its place was established the Constitution of the United States, which expressly adopts the Declaration.
The Constitution reaffirmed the importance of the Declaration by article 1, section 2 which requires that representatives must have been “seven Years a Citizen of the United States.”184 It would not be possible for the House of Representatives to convene in 1789 if the Declaration was not the founding document of this nation and still binding. This same proposition is true for Senators required by article 1, section 3 to have been nine Years a Citizen of the United States.”185
Article 11, section 1 requires the President to have been “fourteen Years a Resident within the United States.”186 This is a residency requirement referring to 1775. This date is prior to the Declaration, yet corresponds to the Articles of Association of 1774. This argument is used in Abraham Lincoln’s Inaugural Address affirming that “[t]he Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774.”187
Article VII reaffirms the binding nature of the Declaration. This recognizes that the unanimous consent of those in the convention was recorded in the year of “the Independence of the United States of America the TweLfth.”188 This reaffirms that the Constitution and the Declaration are inseparably linked.189
The Declaration was considered binding upon states newly admitted into the Union even prior to the ratification of the Constitution. This is evidenced by the Northwest Ordinance providing for the establishment of new states on equal footing with the original states.”190
The concern over equal footing was premised upon the need for equal representation. As a result of the importance placed upon assuring that each state in the Union is treated fairly, all admission statutes have contained the words “equal footing” or, to the same effect, “same footing.” In addition, another clause is used to indicate with whom equal footing was granted. The majority of admission statutes use the term “original states.” The original states must refer to those thirteen states which were party to the Declaration of Independence.
By affirming “equal footing with the original states” in subsequent admission statutes, the Founders bound new states to the principles of the Declaration. The admission statutes of several states expressly provide that their respective state constitutions shall be republican and not repugnant to the principles of the Declaration of Independence.” Accompanying this language is the statement that all admissions were “on equal footing with the original states in all respects whatever.”191
The nation and the states are bound to uphold the Declaration. This necessarily requires securing the unalienable right of the “pursuit of Happiness,” which includes property. The national and state governments were formed to secure this right. Any act repugnant to the Declaration of Independence is also repugnant to the Constitution and, therefore, void. If such unlawful acts are upheld by civil servants, it is a breach of the charter and by-laws of this nation. Such actions must be altered or abolished.
This examination of the foundation of property law in the United States has not presented any new principle or new argument. The principle expressed is that the right of property is unalienable. This principle of unalienable property rights is as old as the laws of nature and of nature’s God from which it is derived. That same principle is the very one to which the Declaration of Independence refers in the phrase the pursuit of Happiness.” It is also the very foundation of property law in the United States.
The Declaration of Independence is a document premised upon the laws of nature and of nature s God. Only upon this foundation is it possible to secure unalienable rights. The unalienable right to the pursuit of happiness, which includes property rights, can only be secured by adherence to the foundation upon which all of American civil government was established. Regrettably, however, that foundation has been rejected.
The challenge that faces America is to return to the foundations upon which all rights are premised. The only way individuals can be free and unalienable rights secure is by the recognition that civil government is subject to the laws of nature and of nature’s God. The dictates of the laws of nature and of nature s God are binding whether or not they are acknowledged or noted in the Declaration of Independence. But since we have such a document to remind us of our duty, we ought to accept the challenge and return to the principles of the Declaration. Only then will property rights be secure, all unalienable rights protected, and the individual truly free.
The challenge is to secure unalienable property rights by returning to the principles of the laws of nature and of nature’s God. The challenge involves the elimination of civil domination by extensive regulation. The civil authority should be limited to providing remedies for wrongs inflicted rather than seeking to eliminate possible wrongs. This can be accomplished by the use of nuisance, trespass, theft and other such principles of law. These historically effective legal actions are consistent with a recognition of unalienable property rights. They allow an individual to use his property freely but provide remedies in case he oversteps his liberty and thereby wrongs someone.
For instance, a person should be able to build a skateboard ramp in his backyard without first acquiring a permit from the civil power. Sometimes a permit will be denied because of zoning ordinances which limit construction or property use. Once the ramp is built, if the noise generated by the use is too loud, it may be in violation of some zoning ordinances and subject to a fine. The proper solution would be for those neighbors who are suffering the nuisance, if indeed there is one, to bring a nuisance action against the owners of the ramp. A court action would then determine a solution such as discontinued use, payment of damages to the wronged individuals, or simply a relocation of the ramp. The point is, the individual should not be punished before he violates the laws of nature and of nature’s God. As well, the person should not be so regulated that it is impossible for him to do wrong. He should, however, be held to answer for the wrongs actually committed against a person. This position is consistent with Blackstone’s definition of the pursuit of happiness192 and Kent’s comment concerning utopian equilibrium.193
Civil governments are instituted to secure the unalienable rights of the individual. Unalienable rights are secured by a civil government which provides civil remedies by recourse to courts. If one individual has his unalienable rights violated by an individual overstepping the limits of his rights, the wronged individual may pursue the civilly-provided process for remedy. This process is far superior to a utopian notion which seeks to eliminate all possible opportunity for the commission of a wrong. The laws of nature and of nature’s God allow an individual the freedom to make a mistake but hold him accountable for the wrong committed.
There is a price to be paid to restore security to our threatened unalienable rights. Individuals will have to recognize the civil threats to their unalienable property rights. Steps must be taken to eliminate the increase in zoning ordinances. The trend favoring redistribution of wealth must be eradicated. Civil officials must be held accountable for fostering the increase in civil tyranny contrary to the Declaration of Independence and the Constitution.
The increasing violation of the unalienable right of property, and indeed all unalienable rights, is a central component of the increase of civil tyranny. The trend will not end overnight. But it certainly will not end unless efforts are made to return to the Declaration of Independence and the laws of nature and of nature’s God. Civil powers must be exercised consistently with this foundation. Only then will there be a solid foundation for securing unalienable property rights.
* Copyright © 1989, 2006 Richard A. Huenefeld. Used with permission.
174. W. Bluhm, Theories of the Political System 222-47 (3d ed. 1978).
175. R. Epstein, Takings: Private Property and the Power of Eminent Domain (1985).
176. Id. at 11.
177. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1240-41 (1979).
178. See generally H. Titus, The Dominion Mandate: The Family, Private Property and Inheritance (1985) (unpublished manuscript); U. Middleman, Pro-Existence (1974).
179. E. Paul, Property Rights and Eminent Domain (1987).
180. Id. at 77.
181. Id. at 224-39.
182. See generally Reich, supra note 172.
183. A complete examination of eminent domain is beyond the scope of this thesis and is therefore left to others. See generally Thompson, The Unalienable Right of Property: Examining the Fourth and Fifth Amendments, 8 J. Christian Jurisprudence 189 (1990). It is enough to say here that the modern concept of eminent domain was not embodied in the fifth amendment. The fifth amendment was adopted to invalidate the taking of private property from one person for the private use and enjoyment of another. Midkiff v. Tom, 702 F.2d 788 (1983), rev’d Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). James Madison saw the amendment as extra protection from the legislature becoming an instrument of a majority of those without property to take from those with property. 5 The Writings of James Madison 29, 271-72 (G. Hunt ed. 1904).
184. U.S. Const. art. I, §2, cl. 2.
185. U.S. Const. art. I, §3, cl. 3.
186. U.S. Const. art. II, §1, cl. 5.
187. A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 7 Messages and Papers of the Presidents 3208 (J. Richardson ed. 1897).
188. U.S. Const. art. VII.
189. See also J.Q. Adams, The Jubilee of the Constitution, A Discourse Delivered at the Request of the New York Historical Society, on Tuesday, the 30th of April, 1839, reprinted in 6 J. Christian Jurisprudence 4 (1986).
190. Sources, supra note 14, at 395.
191. See Nebraska, ch. 59, 13 Stat. 47,48 (1864); Nevada, ch.36,13 Stat.30,31 (1864); Colorado, ch.37,13 Stat. 32,33 (1864); N. Dakota, S. Dakota, Montana, Washington, ch. 180, 25 Stat. 676, 677 (1889); Utah, ch. 138, 28 Stat. 107, 108 (1894); New Mexico, ch. 310, 36 Stat. 557, 558 (1910); Arizona, ch. 310, 36 Stat. 557, 569 (1910).
192. See supra text accompanying notes 48-51.
193. See supra text accompanying note 100. See also U. Middleman, Pro-Existence (1974).