Monday, February 1, 2010


"America has set the example and France has followed it of charters of power granted by liberty. This revolution in the practice of the world may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness" -- James Madison; 'Charters' (1792)

Although Mr. Madison there refers to the construction of governmental powers--and well every true constitutionalism ought to agree--it seems the logic ought to be extended to all charters as well. As his collegue Thomas Jefferson wrote in a letter to William Plumer regarding the usurpation of the high court in favor of the corporate sovereignty of Dartmouth College:

"The idea that institutions, established for the use of the nation, cannot be touched nor modified, even to make them answer their end, because of the rights gratuitously supposed in those employed to manage them in trust for the public, may, perhaps be a salutary provision against the abuses of a monarch, but it is most absurd against the nation itself"

If only such practicality were acknowleged by those who claim the constructionist ideology today!

Wednesday, December 16, 2009

The Right of Exclusion

" inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money: for in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions."
-- John Locke; Second Treatise on Government (1690)

"The great object should be to combat the evil... By witholding unnecessary opportunities from a few to increase the inequality of property by an immoderate, and especially an unmerited, accumulation of riches... By the silent operation of laws which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity and raise extreme indigence towards a state of comfort"
-- James Madison; from 'Parties' (National Gazette, 1792)

The right of exclusion is a positive liberty made posible by the intervention of civil government in recognizing, and protecting by the threat of violence, the property of individuals or of collectives. Indeed, for the good of individual and civil society, such is--as with any form of resonable intervention of the civil government--a necessary evil. In order to fall within the bounds of reason however, it ought to be--as with any intervention of civil government--limited to the minimum of necessity. Too great a degree beyond minimum necessity will inevitably result in a tyranny over some individuals at the hands of others.

Intervention on behalf of the property owner--to protect by coercive force the individual's holdings--ought to be limited to such an amount as allows the minimum personal sphere of security. Beyond such, the individual is free to protect such property as one wishes at own expense, though it is questionable whether the power of life or death over the trespasser is reasonably placed in the hands of the property holder. With regard to ones immediate sphere of security the argument for a virtually unlimited defense of property is strong. Beyond that, reason persuades us that the life of the individual is of far greater importance than material possessions.

With regard to property collectively held as joint stock capitals, so long as said corporate property is operated for a public purpose according to state charter, such should be protected in such a manner as public property itself. For such corporations as are governed loosely by the state jurisdiction that they are under, it should still be reasonable to protect such collectively held property for the security of the stock-holder, so long as it is characterized by a significant dispersion amongst the population as whole, allowing for as small a degree of arbitrarity of law as possible. For if a company were to be created for the sole purpose of unequally protecting the assets of a priveleged few, beyond the scope of minimum necessity, such would seem an excessive exertion of state power.

To such an extent that one presumes it impracticable to limit the coercive power necessary to "opportunities from a few to increase the inequality of property by an immoderate, and especially an unmerited, accumulation of riches" one ought to also accept the intervention necessary to mitigate the resuling evil of such accumulations.

Sunday, August 23, 2009


"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.

...He has an equal property in the free use of his faculties and free choice of the objects on which to employ them...

...Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
Where there is an excess of liberty, the effect is the same, tho' from an opposite cause."

-- James Madison; from Property as published in the National Gazette

Given such a definition, the protection of property being the chief concern of government appears rather different from how it is taught from the orthodox view. Indeed, the "larger and juster" meaning would seem to be that which prevails upon the other. This principle seems to operate in concert with human conscience, which would indeed seem necessary in a government composed of "We the people"

As I explored in my last post, there are certain natural rights that individuals--for the sake of security--exchange for civil rights:

"if a way could be Devised to exchange that quantity of Danger into so much protection, so that each individual Should possess the strength of the whole Number."

But what represents danger to the individual? Most of the obvious dangers are accounted for in our Bill of Rights, but another, the unmitigated accumulation of capital (an excess of liberty?) remains unaccounted for. Our county's sixteenth president, Abraham Lincoln warned of this

"In my present position I could scarcely be justified were I to omit raising a warning voice against this approach of returning despotism... the effort to place capital on an equal footing with, if not above, labor in the structure of government. It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor... Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration. Capital has its rights, which are as worthy of protection as any other rights. Nor is it denied that there is, and probably always will be, a relation between labor and capital producing mutual benefits. The error is in assuming that the whole labor of community exists within that relation."

It would seem that, given our historical recognition of the property in an individual's labors, that there ought to be a readily available mechanism for the protection of such property.

Monday, June 22, 2009

Common Sense and Common Law

"Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer." -- Thomas Paine, from Common Sense, (1776)

  • Paine further explored the relationship between society and state in Rights of Man, Part the Second.

"Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished...

All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.

But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent."

  • But how may we know which functions are fit for the management by the individual members of Society, and which by the State. Paine explores which Natural Rights are fit to exchange for Civil Rights in this excerpt from a letter to Thomas Jefferson.

Suppose 20 persons, strangers to each other, to meet in a Country not before inhabited. Each would be a Sovereign in his own Natural right. His will would be his Law, but his power, in many cases, inadequate to his right and the consequences would be that each might be exposed, not only to each other, but to the other nineteen. It would then occur to them that their condition would be much improved, if a way could be Devised to exchange that quantity of Danger into so much protection, so that each individual Should possess the strength of the whole Number.

As all their rights, in the first case, are natural rights, and the exercise of these rights supported only by their own natural individual power, they would begin by distinguishing between those rights they could individually exercise fully and perfectly and those they could not.
Of the first kind are the rights of thinking, speaking, forming and giving opinions, and perhaps all those which can be fully exercised by the individual without the aid of exterior assistance or in other words, rights of personal competency.

Of the second kind are those of personal protection, of acquiring and possessing property, in the exercise of which the individual natural power is less than the natural right. Having drawn this line they agree to retain individually the first Class of Rights or those of personal Competency; and to detach from their personal possession the second Class, or those of defective power and to accept in lieu thereof a right to the whole power produced by a condensation of all the parts.
These I conceive to be civil rights or rights of Compact, and see distinguishable from Natural rights, because in the one we act wholly in our own person, in the other we agree not to do so, but are under the guarantee of society...

But it does not follow that the more natural rights of every kind we resign the more security we possess, -- because if we resign those of the first class we may suffer much by the exchange, for where the right and the power are equal with each other in the individual naturally they ought to rest there."

Wednesday, June 10, 2009

Monopsony, Oligopsony, Isonomy

James Madison describes the three main types of government in this excerpt from Spirit of Governments published February 20, 1792 in the National Gazette:

"May not governments be properly divided, according to their predominant spirit and principles, into three species of which the following are examples?

First. A government operating by a permanent military force, which at once maintains the government and is maintained by it; which is at once the cause of burdens on the people and of submission in the people to their burdens. Such have been the governments under which human nature has groaned through every age. Such are the governments which still oppress it in almost every country of Europe, the quarter of the globe which calls itself the pattern of civilization and the pride of humanity.

Secondly. A government operating by corrupt influence; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole: in a word, enlisting an army of interested partizans, whose tongues, whose pens, whose intrigues, and whose active combinations, by supplying the terror of the sword, may support a real domination of the few under an apparent liberty of the many. Such a government, wherever to be found, is an imposter. It is happy for the new world that it is not on the west side of the Atlantic. It will be both happy and honorable for the United States if they never descend to mimic the costly pageantry of its form, nor betray themselves into the venal spirit of its administration.

Thirdly. A government deriving its energy from the will of the society, and operating by the reason of its measures on the understanding and interest of the society. Such is the government for which philosophy has been searching, and humanity been sighing, from the most remote ages. Such are the republican governments which it is the glory of America to have invented, and her unrivalled happiness to possess. May her glory be completed by every improvement on the theory which experience may teach; and her happiness be perpetuated by a system of administration corresponding with the purity of the theory."

Which sort do you suppose exists in our country?

Thursday, May 14, 2009

States Rights...? Originalist?!

Thomas Jefferson is often cited as a great defender of "states rights" and is quoted by "constitutional originalists" for his many quotes about the infringements of the Marshall Court upon state power, such as the control of charters in the case of Dartmouth_College_v. Woodward, from his opposition to the Bank of the United States, and other criticisms of internal improvements by the Federal Government. But it is only fair to note that Jefferson used such arguments when they served his purposes, and they did not always. As an instance, let's look at the matter of funding the freeing and recolonization of slaves, and where the necessary funds should come...

"Why not from that of the lands which have been ceded by the very States now needing this relief? And ceded on no consideration, for the most part, but that of the general good of the whole"

This reflected a past battle that Jefferson had lost. Several years earlier, he had this to say about the dispersion of lands...

"I am very differently affected towards the new plan of opening our land office, by dividing the lands among the States, and selling them at vendue. It separates still more the interests of the States, which ought to be made joint in every possible instance, in order to cultivate the idea of our being one nation, and to multiply the instances in which the people shall look up to Congress as their head. And when the States get their portions, they will either fool them away, or make a job of it to serve individuals. Proofs of both these practices have been furnished, and by either of them that invaluable fund is lost, which ought to pay our public debt. To sell them at vendue, is to give them to the bidders of the day, be they many or few."

Such ran across the grain of the Jeffersonian philosophy. So did industrial subsidy, which also bestowed a privilege upon the few under the guise of providing for the Common Welfare. Said Jefferson about such subversion of republican ideals:

"Under the power to regulate commerce, they assume indefinitely that also over agriculture and manufactures, and call it regulation to take the earnings of one of these branches of industry, and that too the most depressed, and put them into the pockets of the other, the most flourishing of all."

Saturday, April 25, 2009

The Rights of Mankind -- 1868

"I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect"--Thaddeus Stevens

Stevens was the leader of the Radical Republicans who controlled congress during the passage of the Fourteenth Amendment and as such might well be thought of as the father of our modern republic. Section one in the context of that quote above--from one of its principle framers--is unambiguous:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This was indeed the manner in which Thaddeus Stevens aspired to in life... and also after his passing. As his death approached he selected a burial place, and wrote his own epitaph accordingly:

"I repose in this quiet and secluded spot, not from any natural preference for solitude, but finding other cemeteries limited as to race, by charter rules, I have chosen this that I might illustrate in my death the principles which I advocated through a long life, equality of man before his Creator."

His last will and testament included the appropriation of $50,000 for the establishment of an orphanage, aspiring to the same just purpose:

"They shall be carefully educated in the various branches of English education and all industrial trades and pursuits. No preference shall be shown on account of race or color in their admission or treatment. Neither poor Germans, Irish or Mahometan, nor any others on account their race or religion of their parents, shall be excluded. They shall be fed at the same table."