[My primary inspiration for these posts comes from the article “Property and Principle” from the Objective Standard, and Eric Daniels’ course “Property Rights in American History,” available from the Ayn Rand e-store.]
The United States is Not a Democracy
I want to make a comment about the form of government that the founders attempted to create. They understood from studying history that a pure democracy could be just as tyrannical as a dictatorship. James Madison, in a letter to Thomas Jefferson, put it this way:
If then there must be different interests and parties in Society; and a majority when united by a common interest or passion can not be restrained from oppressing the minority, what remedy can be found in a republican Government,…
Their solution to this problem was, in part, to create a constitution which placed restrictions on the government, forbidding certain infringements on personal liberties and rights. In addition, they devised a system of checks and balances between the branches of government so that should one branch attempt to overstep those restrictions, the other branches would step in and prevent it.
We have seen so far that the changes in how the courts dealt with property and economic rights have essentially switched the burden of proof when laws affecting these rights are challenged. Prior to the New Deal era, the government had the obligation of showing that the legislation either did not violate individual rights or if it did, that the violation was as minimal as possible to satisfy a compelling interest of the government. This was part of the original design of the government, with the courts acting as a counter to the legislature.
From the New Deal era on, more and more the courts deferred to the legislature on issues of property or economics, such that the burden of proof was flipped onto those who were challenging government action. The defendants had to prove that the government was violating their rights and that their intent did not relate to a compelling interest.
This slide reached something of a breaking point in the mid 1950s when two cases solidified the second class status of property and economic rights. The first of the cases was Berman v Parker in 1954. This case involved urban redevelopment in Washington D.C. where the Congress planned on seizing via eminent domain a large swath of property they deemed as “blighted” in order to turn it over to a private corporation for development. Their rationale was that the blighted area was a public hazard, leading to higher crime and etc. and the redevelopment would correct these problems.
Addressing the question of whether such an action was actually in the public interest, Justice Douglas wrote:
Subject to specific constitutional limitations (i.e. explicitly listed rights in the Constitution), when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served
The second decision is from 1955 and was also written by Justice Douglas, went even further. In Williamson v Lee Optical, which addressed an Oklahoma law restricting opticians from creating replacement lenses or fitting glasses without a prescription. This law was obviously an attempt by ophthalmologists to protect their business from new competition as patients could not go to the ophthalmologist to get their eyes checked and then to a less expensive optician to get their frames fit. This discriminatory law would not have completely achieved its aims as it did not prevent opticians from making new lenses from prescriptions already on file. This was no impediment to the justices. As Justice Douglas wrote:
But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
With these two decisions the fall in the status of property and economics rights was largely complete. No longer would these rights be awarded the same protection as they had in earlier years and that personal and political rights still received. From this point forwarded the courts would defer to the legislature’s judgement of what qualified as in the “public interest,” whether their policing powers extended to the issue at hand, and whether a given remedy might correct the perceived problem, even if it was the court that had come up with the plausible explanation of how it might do so, in some cases even if the legislature rejected that explanation, as in Justice Roberts’ decision on Obamacare.
Beginning in the early 20th century and continuing through the New Deal and beyond, statists pushed to relegate property and economic rights into a secondary position primarily in order to advance their welfare state agenda. Without the protection of the courts, those who felt they were being injured by economic legislation had no option but to try to change the laws, either by lobbying politicians or working to elect politicians who shared their goals. This was understood and even desired by the statists As Justice Douglas said in the Williamson v Lee Optical decision cited earlier:
We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, 94 U. S. 113, “For protection against abuses by legislatures, the people must resort to the polls, not to the courts.”
This state of affairs brings us to campaign finance and Citizens United. Campaign finance laws attempt to restrict the money spent in elections, primarily by limiting donations to candidates. There is a long history of such legislation. In 1905 President Theodore Roosevelt called for legislation outlawing political donations by corporations, and the law was passed as the Tillman Act in 1907. Over the years more laws were passed limiting donations by individuals as well. This despite the fact that there is evidence that the amount of money a candidate spends does not greatly affect the outcome of an election. As Steven Levitt points out in Freakanomics:
Here’s the surprise: the amount of money spent by the candidates hardly matters at all. A winning candidate can cut his spending in half and lose only 1 percent of the vote. Meanwhile, a losing candidate who doubles his spending can expect to shift the vote in is favor by only the same 1 percent.
As noted in part one, the founders understood that all rights are interconnected, with property rights serving as the foundation for all the rest. The right to use your property, including money, as you see fit is crucial to maintaining your life, liberty, and pursuing your happiness. In the case of free speech, money (your property) is what allows you to disseminate your opinion effectively, which is a crucial aspect of this freedom. Being free to state your opinion only to those within the direct sound of your voice is hardly a right worth protecting.
Having pushed those who would challenge economic regulation and legislation into the political process, the statists are the ones who now most decry money in politics, whether lobbying or in elections, and want most to restrict spending in politics, limiting the freedom of speech in the very arena they had exiled property rights in an attempt to render them defenseless. These statists are also those who most oppose the Citizens United decision removing limits on indirect election spending (as opposed to directly to a candidate) by corporations, associations, and unions, dealing a minor check to the rising tide of infringements on freedom of speech under the guise of violations of property rights. (Odd thought that.)
Yet, given all rights are interconnected, infringements of any one of them will inevitably lead to infringements of other, and eventually all, rights.