Thursday, March 4, 2010

The Constitution Does Not Protect Our Property

The U.S. Constitution is widely believed to have been written to limit the powers of the federal government and protect the rights of its citizens. Inexplicably, this belief is held even by those who acknowledge that the constitutional convention was called for the express purpose of expanding the powers of the federal government, supposedly because the government under the Articles of Confederation was too weak. That this was the purpose of the convention is not a disputed fact. Nevertheless, most people who care at all about the Constitution continue to believe and promote the “Constitution as protector of rights” myth.

To the extent that the Constitution enumerates certain powers for the federal government, with all other powers assumed to be excluded, it does set some limits on government. When one includes the first ten amendments of the Constitution, it also protects certain rights. Indeed, the ninth amendment makes the very important point that the specific protections of certain rights does not in any way deny the existence of others, while the tenth amendment makes explicit the implied limitation to enumerated powers in the Constitution itself. At first glance, the so-called “Bill of Rights” seems to confine government power within an airtight bottle, rendering it incapable of becoming a violator of rights instead of protector of them.

However, this theory does not hold up well under closer examination. To begin with, the Constitution itself does not protect a single right other than habeas corpus, and that comes with a built-in exception. What the Constitution does do is grant powers, and not just to a representative body, as the Articles of Confederation did, but to three separate branches. That leaves it up to the Bill of Rights to serve the purpose of protecting our rights. Generally, those ten amendments protect our rights under extraordinary circumstances, but not under ordinary circumstances. More specifically, the Bill of Rights provides protections for the individual during situations of direct conflict with the federal government, such as when one is accused or convicted of a crime, when one is sued, on the occasion of troops being stationed in residential areas, or when one speaks out against the government or petitions it for redress of grievances.

Make no mistake, these protections are vital and have provided protections for the people against government abuse of power many times in U.S. history. However, they have proven ineffective against the slow, deliberate growth of government power under ordinary circumstances, when the specific conditions described in those amendments do not exist. This is primarily due to the absence of protection, either in the Constitution or in any subsequent amendment, of the most important right of all: property.

By “property,” I do not mean exclusively or even primarily land ownership, although land ownership is one form of property. By “property,” I mean all that an individual rightfully owns, including his mind, body, labor, and the fruits of his labor. It is specifically the right to the fruits of one’s labor that the Constitution fails entirely to protect. In fact, it makes no attempt to do so whatsoever.

In the Constitution itself, the word “property” appears only once, and that is in reference to property owned by the federal government (an inauspicious start). Nowhere does it make any mention of property owned by the citizens.

The document does grant the federal government the power to tax “to pay the Debts and provide for the common defense and the general welfare of the United States.” This is a strikingly unlimited scope for which the federal government may tax its citizens. Arguments that taxes may only be collected to underwrite the subsequently enumerated powers have been struck down. Sadly, those decisions have probably been correct. While the power of the Congress to pass laws is explicitly limited to those “necessary and proper for carrying into Execution the foregoing Powers,” no such language binds the power to tax. The fact that the explicit limitation exists for lawmaking (which Congress ignores anyway) but not for taxation lends further weight to the argument that the Constitution grants Congress unlimited power to tax its citizens.

One can certainly make the argument that in 1789, the term “general welfare” would have been interpreted much differently than it is today. Indeed, one might assume that the term “general welfare” meant the general protection of each individual’s rights. Perhaps that is what many of the founders believed at the convention. However, it is clear that Alexander Hamilton and his Federalists, the driving force behind calling the convention, had far different ideas about what the term “general welfare” meant. Remember that for Hamilton, the purpose of government was not the protection of rights, but the realization of “national greatness.” This could only be achieved at the expense of individual rights, primarily property rights.

So, the Constitution itself grants Congress unlimited power to tax and does not even mention, much less protect, the individual right to keep the fruits of one’s labor. Certainly the Bill of Rights addresses this deficiency, doesn’t it?

It does not. Like the Constitution itself, the Bill of Rights is virtually silent on the central right of property. Out of all ten amendments, the word “property” appears in only one of them:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Unlike the congressional power to tax granted in the Constitution, the constitutional protections codified in the Fifth Amendment are severely limited to specific, extraordinary circumstances. The entire Fifth Amendment is set in the context of criminal law, granting certain protections to the accused and/or convicted. The phrase “due process of law” is a specific legal term that refers to those accused of a crime being given notice of the charges, opportunity to face their accusers, call witnesses in their defense, etc. This was obviously the intent of this protection of property, rather than a general protection of property rights against taxation.

Even if one discards the clear intention of this clause of the Fifth Amendment and interprets “due process of law” more broadly, the amendment offers no more protection of property than if one interprets the clause narrowly. Since the power to tax is an enumerated power, Congress would be following due process of law simply by levying the tax in the first place.

The last clause of the Fifth Amendment, regarding property taken “for public use,” is similarly limited to extraordinary circumstances. This clause undoubtedly refers to eminent domain, which is a grievous abuse of property rights, but certainly not one that affects a large percentage of the population. Even here, no right is protected. The clause merely requires the government to give the victim “just compensation.” There is no mention of the primary component of the right of property, consent.

Furthermore, there is no mention of how “just compensation” is to be determined, although history has shown that the government itself determines what compensation is just arbitrarily. In a free society, the value of property is determined by the price at which the owner is willing to exchange it. However, since there is no requirement here of the owner’s consent, no such price determination can occur.

As for the remaining protections of property in the Constitution and Bill of Rights, there are none. These two phrases, protecting property under only the most extraordinary circumstances are the length and breadth of the Constitution’s involvement with this most fundamental right. It is this deficiency that has allowed the federal government to grow into the monster that it is, concerned with virtually nothing but the redistribution of wealth.

If you believe the official myth about the Constitution, this might seem shocking. After all, the document was drafted by the same people that had seceded from their nation and fought a long and bloody war primarily to defend their right to keep the fruits of their labor. How could they draft a document to recreate their government, which they said only existed to secure their rights, and not only fail to secure the most important right, but actually empower their government to violate it with impunity? Certainly this was history’s most colossal error.

However, when you consider the political platform of the Federalists, which included corporate welfare, monetary inflation, deficit spending, government debt, and militarism, all designed to maintain the wealth and power of a privileged elite at the expense of the rest of the citizenry, the unlimited power to tax and lack of protection of property seem less like error and more like deliberate intention.

Whenever the subject of “constitutional rights” (a problematic term itself) comes up, people reflexively refer to the right of free speech. This is an important right, and one defended across the political spectrum. However, free speech, freedom of the press, and the other rights protected by the Bill of Rights, without property rights, are inconsequential – the mere window dressing of liberty. It is property that enables one to determine the course of one’s own life. Without it, the right to life is no right at all, but rather a privilege granted by those who own your labor.

George W. Bush was an enthusiastic supporter of the right of “free speech.” During a town hall meeting, an average American who opposed Bush’s policies rose and began hurling insults at the president, eliciting boos from the Bush-friendly audience. Bush reprimanded the crowd, reminding them that this man had a right to speak his mind, even if they did not like what he had to say. It was not the only time that he stood up for free speech. This was no accident. A government that has the unlimited power to seize the property of its citizens can afford to be magnanimous when it comes to free speech. Yet, for the citizen who no longer owns the fruits of his own labor, the right to complain makes him no less a slave.

Check out Tom Mullen’s new book, A Return to Common Sense: Reawakening Liberty in the Inhabitants of America. Right Here!


© Thomas Mullen 2010


Crusty said...

Nice...I guess it could be justifiably argued that the Declaration of Independence could have been re-issued to the U.S. government, immediately after the Constitution was ratified. Either way, a Declaration of Independence is long overdue today.

I like that you briefly pointed out the misconception that the government's job is to PROTECT our rights, whereas their actual job is to just not violate our rights.

They were never supposed to protect our rights, and I don't want them to protect my rights. I just want them to NOT violate my rights (of which we have very few, as you pointed out).

Anonymous said...

I like it, I like it. Good job here, Tom.

Could it be that the founding fathers (the elites of their day) saw the massive outflow of property (in the form of currency, taxes) going out of the country, overseas, and got envious and greedy? After all, why should some prick on a throne 3,000 miles away receive all this capital/property derived from the labor of the colonists when the homegrown elites could take it for themselves?

So their conundrum was instating a similar system, but merely changing the immediate beneficiaries; to create a system that serves the same purpose, while making it less obvious to the masses. To this end they created the most upside down, duplicitous government in history, where "we the people" is an inside joke to the elites -the ones who truly understand what this system is all about.

Anonymous said...

This really puts things in perspective as it pertains to the libertarian supporters of the american constitution. Could it be that they only seek to facilitate its continuation for the sole purpose of maintaining our enslavement? If so, it's an elitist strategy and not a grass-roots one. The libertarian individuals' support is misplaced, when you think about it, because they may unknowingly support the inevitable confiscation of all that gold that they've been greedily accumulating. Furthermore, the only ones who could benefit from such a monetary policy today are the very rich who can afford to buy all that gold. Even if we somehow transitioned back to an old-school interpretation of a constitutional republic, the power structure would remain the same and the enslavement and violations of our rights would only continue.

What does one do to change a system that favors profits, bureaucratic hierarchy, elitism into one that favors social utility and Human dignity? I doubt the constitution, in it's current form, will facilitate or endorse such change.

Very nice article. You helped me understand a little more today.

Mike said...

Interesting, Tom.

I must ask though, from whence comes "property"?

It is a impossible conundrum in itself-particularly when dealing with land and the product of it. Can you think of a time, or place, where "ownership" of land did not rely upon the use or threat of force to secure the exclusive use of that land? I know of no such instance.

So then should we be surprised that governments-the entities that maintain that fascinating monopoly on violence(force for the uninitiated)-manage to find a way, veiled or not, to make all real property "public"? They must do so, or they cease to be.

Anyway, good article.

Luke Fisher said...

Intriguing article. I had never thought of a few of the ideas presented here before but to see it presented in this manner is refreshing. I had an inkling of this when people say, let's go back to the Constitution or "I'm a constitutionalist". What they mean is their interpretation of that document.

I wonder if there will ever be a time when people respect property rights en masse.

liberranter said...

Well done, Tom! At one point a few years back I actually started examining the Constitution article by article, section by section, clause by clause to identify what I considered either flaws or loopholes (more the latter than the former, I'm sure) that gave the federal government excessive power. I then began rewriting and blogging them, as an exercise in intellectual isometrics, just to see what a "libertarian" constitution might have looked like. Of course I ultimately realized that any "constitution" revolving around a central government was fundamentally un-libertarian to begin with and decided that there were better ways to use precious lifehours. Still, it was the first time I had ever really examined just how inadequate this most hallowed document is for its ostensible purpose.

By the way, someone needs to send a copy of your article to Howard Phillips, Chuck Baldwin, and the others who make up the leadership of the "Constitution Party" and ask them to explain why they believe that the document they've chosen as their party's symbol is adequate to the preservation/reassertion of liberty they claim to want to restore. What better way to determine where their loyalties lie: the document itself or the ideals of liberty that it is supposed to represent, if not actively preserve?

Claire M said...

I agree it is a shame that our constitution does not expressly protect the right to property. Maybe we should amend it to do so, and amend the general welfare clause while we are at it. You could still argue, though, that since racking up deficits and killing jobs through socialism is clearly NOT in the interest of our general welfare, however one chooses to define the term, therefore Congress has no authority to do these things.

That being said, I think your take on the Federalists is way too cynical. It was very expensive to defeat the British and gain independence. Without the power to tax for military spending, how would the colonies have paid for that war? Without a federation, what would have stopped various states from just opting out and refusing to pay, or to fight, knowing that they might just be able to sit back and let others do the dirty work, and then reap the benefits of freedom from British rule when it was all over?
If in fact most colonists thought like this, if there were no sense of unity and solidarity in the pursuit of liberty, we would probably still be a British colony.
An what about the great success of the USA prior to the disastrous and I would argue (taking issue here with the premise of your article)unconstitutional policies of FDR? Could this country have risen so fast and so well had we not had a common currency and federal laws prohibiting the states from levying tariffs against each other? Can you honestly say that our great military might as a nation did not deter foreign invasions against us? Think of what Hitler, Hirohito, Stalin would have loved to do to this great and fertile land, had it only been divided into 50 disorganized and unaffiliated states with no air force or navy, just small militias? The USA was a great nation that changed the world for the better; moreover there have been many occasions when our federal government did protect individual rights against the tyranny of state governments. I wish more libertarians would appreciate that.

Anonymous said...

Is Tom becoming an anarcho-capitalist?

Auto Accident Attorney Houston, Texas said...

There should be change in the constitution. The unlimited seizing right should be taken from the govt.

Anonymous said...

I recently read a book about the Constitution that makes it out to be one of the greatest documents ever written. Certainly the bill of rights beats the tyrrany of the inquisition. However, it is true, that property was left out of the equation. The right to the fruits of ones labor didn't enter into the consciousness of the wealthy landowners who framed our constitution. They still held slaves for crying out loud.

We have some very fundamental problems that cannot be fixed by making an amendment here or there to the constitution.

In a land that is ruled by laws based on certainty, the laws are few and easily understood by all. However, in a corrupt land, the laws being based on uncertainties, are complex and under constant revision. This weaves a web that traps the weak and only allows the strong to break through.

Aristocracy is very much alive in the minds and hearts of men, and until all men and women respect each others right to live a full and fulfilling life, neither communism, nor capitalism, or even anarchy will help us out of our predicament. The system is only a manifestation of the hearts and minds of the people who comprise that system.

silentnomore9 said...

When the first amendment says, "Congress shall make no law..." it is limiting the power of congress.

When the Bill of Rights says, "... shall not be infringed", it is limiting the power of government.

When the Fifth Amendment says, "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" it is limiting the power of government.

This same process of saying no to government intrusion is repeated 13 times in the Bill of Rights which is expressly permitted by the constitution.

The constitution is all about establishing a federal government that is severely limited in its power to intrude upon individual freedom. Somebody needs to read the constitution before they try to write a book about it.

Tom Mullen said...

@silentnomore9 - I specifically addressed the so-called Bill of Rights in the article, pointed out why its protections are limited to extraordinary circumstances, and quoted them and the Constitution at length. Your response completely ignores my argument and instead implies that I haven't even read the Constitution. I suggest that you have an emotional attachment to the Constitution that is clouding your reason - this reply smacks of exactly that. I suggest that you read "Hamilton's Curse" by Tom Dilorenzo. It is an eye-opening look at the real agenda of the Federalists, which is by no means a secret of history, but which we ignore because of the comfort our fairy tales about the Constitution give us.