Guest Essayist: Joerg Knipprath


Essay Read By Constituting America Founder, Actress Janine Turner


“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”

Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.

Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”

Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”

The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.

Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.

Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.

The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.

Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

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