[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.]

Today it seems that one can hardly go a day without hearing about how “big money” is ruining our government.  How we have “the best government money can buy.”  Or how if only we could keep corporations, or the rich, from spending so much money to influence the political process, everything would be better.  What is never talked about is how both lobbyists and campaign spending are largely driven by,and the logical outcome of, the erosion of rights, especially property rights, in the last century or more.

At the time of the founding of the United States of America, property rights were seen as integral to all human rights.  It was understood that if you did not have a right to your property, then you did not have a right to life, liberty, or pursuit of happiness.

John Adams wrote in the Massachusets Declaration of Rights:

All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

After the Constitution was ratified, Justice Paterson of the Supreme Court wrote in Vanhorne’s Lessee v. Dorrance, 1795:

The right of acquiring property and having it protected, is one of the natural, inherent, and unalienable rights of man.  Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security is one of the objects, that induced them to unite in society.  No man would become a member of a community, in which he could not enjoy the fruits of his honest labor and industry.

It should be apparent from these quotes that from the beginning, Americans understood that the right to property; that is the right to acquire, use, and dispose of property – was a crucial inalienable right of all people.  In his essay, “Property,” James Madison, often called the father of the constitution, explicitly equated property rights to all other rights:

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man’s land, or merchandise, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

…

In a word, as a man is said to have a right to his property, he may equally be said to have a property in his rights.

Finally, from the Declaration of Independence, we have the founders’ belief that the purpose of government is to protect the rights of its citizens:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Taken together, we are left with a picture that at the time of the founding, the protection of rights, including property rights, was seen as the primary function of the government.  While not always perfectly applied, in general most cases were judged on what would today be called “substantive due process” or “strict scrutiny.”  In this view, government action is only valid if it does not violate the rights of the citizens, serves a compelling interest (as opposed to simply something preferred or desired), address only the essentials of the compelling interest, and does so in the least restrictive manner.

Perhaps the decision of the Court that best describes this point of view was Lochner v New York in 1906, which has come to be synonymous with “economic due process,” and involved a law limiting the maximum number of hours in a day or week that bakers could work, citing “health concerns.”  The defendant in the case, a baker from Utica, New York, contended that such a law interfered with his right to form voluntary contracts with workers.  In striking down the law, Justice Peckham wrote in the decision:

The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

So until early in the 20th century in general, though imperfectly, the rights of the individual were seen as unalienable and protected from the actions of the government.  Being unalienable, such rights are not subject to change by a vote.  No majority, regardless of the size, can vote away your free speech, freedom of assembly, or your right to your property.

In cases where the government claimed to have a compelling interest in infringing on those rights, for example for national security, they had to prove it was a compelling interest and show that they were choosing a course that satisfied the interest with the minimum infringement of the rights of the individual.  This was the case whether the right in question was that of free speech, the right to freedom of contract, or the freedom to dispose of property.   All were seen in the same light and deserving of the same protection under the law.

Within a few decades, things would change that would have far reaching effects, not only for the protection of rights, but for the political process as a whole.  I will take a look at the changes in the next post and the effects on the political process in the third and final post.