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"The right of acquiring and possessing property and having it protected, is one of the natural inherent and unalienable rights of man."[1]A few years ago, one noted political reformer applauded the "demise of property as a formal constitutional limit." A new view of the right to property had, in this author's opinion, begun to replace the old constitutional formalism of the inviolable and sacred right to property. Indeed, this new conception of property "requires incursions on traditional property rights. What once defined the limits to governmental power becomes the prime subject of affirmative governmental action."[2] The object or purpose of governmental action should be the various kinds of "redistribution" that characterize the "regulatory welfare state."[3] And, this commentator concludes, "[o]nce redistribution can be held out as a public purpose, it is difficult to see how lines can be drawn defining some redistribution as, in principle, too much or the wrong kind."[4] This view of the redistributionist state--the welfare state--is premised on the discovery that the right to property is not, as Madison and the framers believed, a natural right; it is merely a "social construct."[5] As such, it has no greater value than any other social construct. And like any mere construct, it can be put in the service of human progress--a progress that is not limited by "deeply problematic" notions of "natural rights" or "limited government."[6] "It is now widely accepted," this prognosticator concludes, "that property is not a limit to legitimate governmental action, but a primary subject of it."[7] At the time, these views seemed wildly inflated--mere wishful thinking on the part of an intellectual searching for "a new conceptual framework."[8] The Supreme Court's decision in Kelo v. City of New London (2005), brings these comments and their rejection of the views of the American Founders--not to mention the practical implications of that rejection--to the forefront and gives us an opportunity to review why the right to property is essential to the maintenance of liberty and the prevention of tyranny.
by Edward J Erler, Ph.D.
As in the days of Noah....
