The Obsolescing Right

Thursday, September 29, 2005, the Cato Institute’s “Daily Dispatch” ran this item concerning the debate over President Bush’s choice of John Roberts, Jr., as the seventeenth Chief Justice of the United States Supreme Court:

In “The Key Issue for the Court Isn't Abortion,” Edward H. Crane, founder and president of the Cato Institute, writes: "[A]bortion is a serious issue. . . . But the fact that the abortion debate so controls the debate over judicial philosophy is unfortunate. There are more important issues out there, such as federalism and private property rights, the cornerstones of our liberty."

The Cato Institute is a libertarian or “market-liberal” organization, stressing Constitutional freedoms along with a laissez-faire economic philosophy. As such, it tends to uphold individual rights as understood by the more conservative, constructionist jurists, though not exclusively (for instance, its support of medical marijuana runs counter to many conservatives’ positions).

It is in this light that we should see Crane’s comments regarding the “right” to abortion versus private property rights. That a woman should be free to kill her fetus was never even remotely contemplated by those who attended the Constitutional Convention, while property rights were front and center, since many of the representatives were wealthy landowners. They were there to embed basic rights and protections regarding property ownership in the very bedrock of American government. They understood that private ownership of property, particularly of land and of businesses, was a bulwark against tyranny and autocracy.

However, over two hundred years later, private property rights in the U.S. are slowly being abridged and are creeping toward obsolescence. Perhaps the greatest blow to this essential freedom occurred just a few months ago, as Crane notes, in “Kelo v. City of New London, where in a 5-to-4 vote the Supremes ruled it was fine for a local government to use the frightening power of eminent domain, not for public use as stated plainly in the Fifth Amendment, but for private gain that would generate added tax revenues for the city.” In response to the groundswell of opposition to this foolish decision, perhaps Congress, in concert with the states, will soon act to reverse Kelo.

Beyond this singular decision, property rights have been increasingly eroded as long as socialism has expanded in American government and culture. On its face, socialism—the, to some, outwardly beautiful, natural child of communism—emphasizes the larger group, in this case, the state, at the expense of the individual. It engulfs a person under wave after wave of restrictive laws and social programs that make him both increasingly subject to and dependent on the state, since his wages are confiscated through heavy taxation and government services are proffered in return.

As the socialist state approaches outright communism, it further curbs private ownership and simultaneously nationalizes both land and critical business sectors (utilities, communications, transportation, etc.). Though the U.S. has not reached this point—and fortunately the American psyche is highly sensitive to restrictions on private ownership—the process is underway, as growing federal holdings, extensive environmental building restrictions, and numerous centrally planned “growth” schemes indicate.

While some try to see a biblical basis for socialism in the experience of the early church (for instance, Acts 2:44), the overwhelming perspective of the Bible upholds private property rights. As early as Abraham (Genesis 23:17-18), God’s people are shown buying and selling all manner of property. Moreover, the laws God gave to Israel concerning property assume individual ownership—indeed, one could say that the tenth commandment (Exodus 20:17: “You shall not covet your neighbor’s house,” etc.) makes property ownership a sacred right. Each person is to be satisfied with what God has blessed him and not crave what his neighbor owns.

Bits of biblical property law appear throughout the Old Testament, as in Deuteronomy 19:14, “You shall not remove your neighbor's landmark, which the men of old have set, in your inheritance which you will inherit in the land. . . .” Simply put, each individual or family owned specific plots of land whose boundaries were not to be violated. God later promises terrible retribution on Judah for doing just this: “The princes of Judah are like those who remove a landmark; I will pour out My wrath on them like water” (Hosea 5:10).

A main feature of the Jubilee was the repossession of land by its original owner, even if he had been forced to sell it due to debt in the intervening years (Leviticus 25:13-17). God set down rather strict rules regarding the sale and purchase of family lands so that Israelite society would have its base in individually owned properties that remained within families through inheritance. For example, when Ahab pressures Naboth to give him his vineyard, the Jezreelite responds, “The LORD forbid that I should give the inheritance of my fathers to you!” (I Kings 21:3). After Naboth is dead through Jezebel’s machinations, and Ahab has taken possession of the vineyard, God harshly condemns their blatant abuse of authority, cursing them to ignominious deaths (verses 17-24).

In the New Testament account of Ananias and Sapphira’s sin, Peter voices the basic, biblical principle of private property ownership: “While it [their land] remained, was it not your own? And after it was sold, was it [the profit] not in your own control?” (Acts 5:4). Even while the brethren “had all things in common” (Acts 4:32), private property rights were not set aside. The entire New Testament operates under this view, to the point that the Mark of the Beast involves abolishing true Christians’ right to buy and sell (Revelation 13:17).

God believes in ownership: “For the world is Mine, and all its fullness” (Psalm 50:12). He allows us to own things under Him to teach us wonderful lessons pertaining to stewardship and authority so that we can learn to be more like Him and eventually exercise great responsibility in His Kingdom (see the parable of the minas in Luke 19:11-27). Sadly, the ever-weakening right to property in this nation is another state of affairs that exposes just how far America has drifted from God and biblical principles.

Liberty and Justice for All?

Over the last two days, two branches of the American government—the judicial and the legislative—proved again either that they have no idea what this nation's Founding Fathers meant when they drafted, debated, and ratified the Constitution, or that they simply do not care what it says. Activities like these are what provide fodder for conspiracy theorists to imagine grand plots whose aims are to subjugate Americans to a New World Order. Whether there are such schemes is moot, but the freedoms of American citizens are being trampled and obliterated, it seems, on a weekly basis by our own government.

To the Patriot Act (a collusion of the executive and legislative branches, with the approval, so far, of the judicial) and to the broad discretionary powers of the President (most of which have been assumed through executive orders and without Congressional or judicial oversight), we can add our governments' right to condemn private property for just about any cause. Today, in a 5-4 decision, the Supreme Court decided that the Fifth Amendment, which prohibits unreasonable seizures of property, can be ignored by local governments—and by implication, state and federal governments—if they can show that new development on the condemned land will economically benefit the community.

This decision means that, if your city fathers decide that a shopping mall or factory or sports arena will provide more revenue to the city than what you pay in property taxes, they have every right to force you to sell your home, farm, or business to them for "fair" compensation. It used to be—and is still the law in many locales—that government could only condemn property for necessary infrastructure—roads, sewers, airports, power plants, etc. Now, however, if a private citizen pays $1,000/year in property taxes, but a strip mall on the same land will bring in $10,000/year—and add a score of new employees and lots of customers who will pay local sales taxes—the citizen's only option is to take whatever price the city offers for his place.

Who knows if this will be the extent of a government's use of this new power? What if the local city council, dominated by one or the other party, wants to make matters difficult for the rival party, and uses this power like a club? It is not out of the realm of possibility that a government could also use this power to force "undesirables"—the poor, members of another race, etc.—out of a certain sector of the city. Or perhaps it could be brought to bear on a "cult" whose ownership of a piece of property in the city is an embarrassment to the "orthodox" community. Do we really want to open the floodgates to these possibilities?

The second anti-Constitutional activity this week involved the House of Representatives approving the wording of a Constitutional amendment that would give Congress the power to punish those who desecrate the American flag. It would read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." This is the sixth time since 1995 that the House has approved this amendment, and the Senate has twice voted it down. If passed, it would overturn a 1989 Supreme Court decision that found that the First Amendment protects flag burning. Analysts believe this attempt will also be defeated, as supporters can muster only 65 senators, two short of the 67 needed for passage.

Flag burning is an emotional issue, and since 9-11, it has gained support across the country. In fact, 9-11 was played like a trump card during the debate: "Ask the men and women who stood on top of the Trade Center," said Rep. Randy "Duke" Cunningham (R-CA). "Ask them, and they will tell you: Pass this amendment." Nevertheless, the First Amendment is clear in its protection of speech, even rebellious or defiant speech: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." The Founders wanted the people of this country to have the power to speak their minds, especially when the government seemed to be getting too big for is breeches.

The Court has found in several instances that "speech" covers symbolic actions—actions deliberately done to make a political point. Burning the flag, then, is along the same lines as burning or hanging a political figure in effigy. Clearly, both of these acts are offensive, but as Americans, we are free to offend and to be offended. Would not the likes of George Washington, Benjamin Franklin, John Adams, and Thomas Jefferson laugh us to scorn if they knew today's Americans are so "sensitive" that they would attempt to amend the Constitution to avoid being offended? In days long past, private citizens would "have a quiet talk" with anyone who would dare to be so offensive against our national symbol. And that would be that.

Do we really want the government to institutionalize authority over disagreeable speech or symbolic actions? If the Congress can punish for desecration of the flag, what other kinds of "speech" could they someday ban or penalize using this amendment as a precedent? How about banning certain books, either political or religious, that they find offensive? Perhaps it could be "offensive" remarks that oppose abortion, promiscuity, or homosexuality (Canada already has such a law against the last)? Or maybe Congress might want to impose its authority on churches who offend by not conforming to "orthodox" practices? All the sea needs is one tiny crack in the dike.

It is ironic that the recent hubbub over the Pledge of Allegiance centered on the words "under God." It seems that we need a national debate on "with liberty and justice for all" instead.