Liberty and Property; J.S. Fulda

175 Liberty and Property by Joseph S. Fulda P erhaps the best way to illumine the con nection between the economics and phi losophy of liberty is to uncover the rela tion between liberty and property. There is no more authentically conservative idea than the rights of property. What is less understood is that there is no more authenti cally liberal idea either. The alliance between liberty and property is nowhere more celebrated than in John Locke's second treatise of govern ment, An Essay Concerning the True Original, Extent, and End of Civil Government, and it is to the master that we tum for its exposition. To Locke, property was a broad concept. Anything that one has a right to is his property, for rights are proprietary interests, no more, no less. Indeed Locke often interchanges "prop erty" and "rights." Everything we have is thus a property: life, limb, health, reputation, and possessions. Thus broadly must be understood Locke's noble statement, oft cited but little un derstood, "Government has no other end but the preservation of property. ' '1 So he explains himself, to anyone who troubles to look.

It is "lives, liberties, and estates, which," Locke informs his readers, "I call by the gen eral name, property. "2 Earlier he had written, "Every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his."3 Properly his - or proper to him - because man has "in himself the great foundation of property. "4 Again and again, this unifying idea-property, Joseph S. Fulda is Assistant Professor of Computer Science at Hofstra University and resides in Manhattan. or rights -lends simplicity and beauty to this earliest exposition of limited government. We have, for example, a proprietary interest in our children which though it gives us the ex clusive right to rear them is neither unlimited nor permanent: we have created an equal with rights of his own. The moral basis of religion is much the same: "For men being all the work manship of one omnipotent, and infinitely wise Maker . . . they are his property, whose work manship they are. . . ." 5 Whether the relation between God and man is master-slave or fa ther-child is the subject of many a theological discourse and an endless dialogue between Cre ator and created. Marriage is also a proprietary interest as it "consist chiefly in such a commu nion and right in one another's bodies.... "6 The commitments of contract, founded on mu tual considerations, are also proprietary in terests, rights to be secured by the law of the land. Richard Baxter, an English divine con temporary with Locke, summed it up this way: "Every man is born with a propriety in his own members, and nature giveth him a propriety in his children, and his food and other just acqui sitions of his industry.... And men's lives and liberties are the chief parts of their pro priety. "7 Perhaps more than anything else, it is Locke's broad, underlying conception of prop erty that makes his magnum opus cohere so gracefully.

It also illuminates the connection between liberty and property. Liberty, after all, refers to something coercive that isn't there. It is a con dition of noninterference with one's properties, one's proprietary interests, one's rights: nonin176 THE FREEMAN. MAY 1987 terference with one's person, family, worship, contracts, and possessions. That is liberty and it is of property. Jefferson's statement that gov ernments were instituted to secure the rights of man is Locke's assertion that governments exist for the preservation of property recast in the language of a later time. The Power to Tax The preservation of attachments, of man to God, of family ties, of contractual commit ments, ofa man to his life, fortune, and honor is perhaps the essence of conservatism rightly understood. The closely allied classical liberal tradition is about freedom: the freedom to at tach, the freedom not to attach, the freedom not to be interfered with in one's attachments.

Government is ever a threat to such freedom and attachment, to liberty and property, for it has within its means the dread taxing power. If we understand property broadly as did Locke, then the power to tax-to take property - is readily seen to encompass all the multifarious interventions of the state in our lives. The power to tax is indeed the power to destroy. Such an understanding of property and taxa tion gives the lie to those who incessantly call for' 'national service" and their fond belief that this would lower taxes. Of course, it would simply mak~ the state's consumption of the en ergies of the citizenry more direct and more co ercive, shifting the burden of taxation from "that property which men have in their . . . goods" to "that property which men have in their persons."8 As George Gilder has written, the shift is regressive, "the Moloch of the closing circle": "The rates of taxation climb and the levels of capital decline, until the only remaining wealth beyond the reach of the re gime is the very protein of human flesh, and that too is finally taxed, bound, and gagged, and brought to the colossal temple of the state - a final sacrifice of carnal revenue to feed the declining elite. This is the destination of all dictatorship .. _.. "9 But what of that property which men have in their goods and in their land? How do rights in places and things preserve liberty? The answer lies more in the nature of human action than in the nature of places and things. Human action not only engages our persons; most action is performed on, with, or by the agency of prop erty. And all human action takes place on the Good Earth, where by the grace of God man has erected his civilization. Thus is liberty of property and thus does the preservation of property rights secure liberty. The founders did not have available the comprehensive and beau tiful vision of human action and economic freedom that we do, but this simple insight, that liberty is largely of property, never left them for a moment. That is why the polity they constructed so protected property and why their hope for freedom was realized here for so long, so well.

To come to a full appreciation of the role of personal property in human action, consider the dearth of activities that would remain open to us were all private (non-state-sanctioned) uses of personal property suddenly banned. Trade and enterprise would vanish, just as Marx, who worked for the abolition of private property, wished. Universities, broadcasters, and printers would have to close up shop, and everything else would soon follow. Indeed only three ac tivities seem to be left to us: disorderly fist fighting (neither gloves, a whistle, nor a ring is allowed), yelling at large crowds (yelling be cause microphones are property, the crowd is gathered because radio, television, and other means of telecommunication involve property), and making love in the grass (beds being prop erty). There was a time when this was largely what was meant by freedom; the reader may recall this as the Freedom of the Sixties. It is what is left of freedom when we are free to use our persons as we wish,but not our property. It is without question a caricature of freedom.

But even such skeletal personal freedom as sumes the right to use the land as one wishes. Without such property rights, even these meager liberties are preserved only as long as the state pretermits. Land use regulations be come ever more proscriptive and ever more prescriptive until one finds oneself utterly without choice of how to live on the land: the condition is known as serfdom and it is the log ical extension of land use regulations and the actual unfortunate lot of millions. When the territory of the free society-the many arenas of private activity-is not respected, the liberties of its denizens are woe fully insecure. That is why state control of land, its use, and its distribution is so promi nent a feature of socialist programs and why such miserable and blatant failures as collectiv ist agriculture still generate enthusiasm among the ruling elite. These leaders understand full well-as did their predecessors in other closed societies, feudal societies, for instance-that the private domains of a free society powerfully cir cumscribe the long arm and reach of the state.

Private property is thus for them a thing to be greatly feared. Whether the state draws the line around the object the man wishes to use or around the man who wishes to use the object is only a matter of perspective. What results is a contraction of choice, a limitation of the field of possibilities for human action, in short an abridgment of liberty. Concern for the security of real property is not new to the tradition of liberty. Indeed it is one of the principal concerns of the Magna Carta and eventually made its way into our Bill of Rights as part of the third, fourth, and fifth amendments to the Federal constitution. Let us move forward in time and examine the liberty-property connection as it is manifested today. Indeed today much abridgment of liberty comes under the guise of regulation of property: real and personal. Whether the state draws the line around the object the man wishes to use or around the man who wishes to use the object is only a matter of perspective. What results is a contraction of choice, a limitation of the field of possibilities for human action, in short an abridgment of liberty.

Regulations of farms and farm products inflate LIBERTY AND PROPERTY 177 the costs of production and abridge the farmer's liberty to produce. Urban zoning ordinances abridge the associative freedoms and erect bar riers to commerce, enterprise, and peaceful resi dency. Airwaves, too, are real property. When their use is circumscribed by "fairness," polit ical access, public access, equal time, commu nity service, and public interest requirements, it is the liberty· of expression that is violated, in particular the liberty not to speak. When labeling requirements are placed on substances, it is the same freedom that is diminished along with the freedom of enterprise. Productive human action is greatly encum bered by detailed regulations on capital goods and plant by the likes of OSHA and USDA, on transportation by the likes of DOT, the ICC, the FAA, and NHTSA, and on housing by HUD and countless state, county, and municipal agencies.

The demands of these agencies are on people, not on machines, trucks, and houses. It is people who are directed to associate with such and such a person in the name of fairness, to transport only such and such an item in the name of fair competition, and to build machines in this or that way in the name of worker safety. But it is precisely because control over people is being exerted through control of property that such measures can never meet their goals. Writes William E. Simon: The common feature of OSHA regs, EPA ,'zero discharge" crusades, and NHTSA ef forts to improve traffic safety is that they seek to create a risk-free existence by manip ulating objects. But most accidents and other health and safety hazards . . . result from human error or carelessness. The crusade to create a totally risk-free environment is therefore doomed to failure from the outset.10 Empirical evidence supporting this generality and demonstrating the incredible lack of cost-ef fectiveness in what is known as the "command and control" method of regulation has become increasingly acknowledged in recent years.!!

The connection between liberty and private property can be further illumined by an examina tion of the connection between their polar oppo sites: totalitarianism and the abolition of private property. "The theory of the Communists may be summed up in the single sentence: Abolition 178 THE FREEMAN. MAY 1987 of private property," wrote Marx.12 Lenin was later to write: "The scientific concept of the dic tatorship (of the proletariat) means nothing·other than unlimited government unrestrained by any laws or any absolute rules and supporting itself by force." 13 The connection between the aim of the former and the reality of the latter is evinced by a consideration of Marx's central proposals: placing under state control the instruments of production (farms and factories), the means of association (transport and communications), and the sources of ideas (schools, universities, churches, printing presses and other media).

We Are What We Consume Broadly considered, the old adage is quite right: we are what we consume. The foods we eat, clothing we wear, houses we dwell in, fur nishings we decorate them with, appliances we use, haircuts we get, discussions we enter into, places we visit, books we read, pictures we watch, courses of study we embark on, ideas we adhere to, and the God we worship: these are all the things that make us what we are: they are our civilization. Control over everything consumed, from ag ricultural produce and manufactured goods to the company of others and the ideas of the day, is thus the power to shape civilization. Marx instinctively reaches for the throat of the free society when he suggests state control of the means of production. "The means of produc tion," after all, is a prosaic phrase. We are talking of nothing less than the source of supply, the means of satisfying human needs and wants. Granting the state power over this satisfaction does more than place every man in "terror of effective deprival ... of his busi ness and his livelihood," 14 although it does that. It allows the state to define society.

The relation between Marxism and the more virulent Leninism thus has a simple, syllogistic structure: We are, broadly speaking, what we consume. In a planned economy, what is pro duced determines what is consumed. There fore, control over what is produced determines the nature of our lives. In a market economy, in contrast, what we would consume is all that can be produced. Control over what is produced and over what is consumed-is left in the hands of the common folk, you and me: that is the essence of a free society. D 1. John Locke, Two Treatises of Government, Peter Laslett, ed. (Cambridge: Cambridge University Press, 1967), II: 94. 2. Ibid., II: 123. 3. Ibid., II: 27. 4. Ibid., II: 44. 5. Ibid., II: 6. 6. Ibid., II: 78. 7. Richard Baxter, The Second Part of the Nonconformist's Plea for Peace, pp. 54-55. 8. John Locke, op. cit., II: 173 9. George Gilder, Wealth and Poverty (New York: Basic Books, 1981), p. 258.

10. William E. Simon, A Time for Action (New York: Berkley Books, 1980), p. 89. . 11. See, e.g., Donald Lambro, Fat City: How Washington Wastes Your Taxes (South Bend, Indiana: Regnery/Gateway, Inc., 1980). 12. Karl Marx and Friedrich Engels, The Communist Manifesto, Samuel Moore, trans. (New York: Penguin, 1967). 13. Lance Morrow, "What Workers Get Out of Communism," Time 116:11, September 15, 1980, p. 102. 14. Herbert Hoover, The Challenge to Liberty (New York: Charles Scribner's Sons, 1934), p. 82. IDEAS ON LIBERTY Property Rights I f perso.nal freedom is the basic institution of the free society, then the principles of private property and freedom of contract must be the vital instruments of the free society; for personal freedom cannot even be conceived outside the environment provided by property and contract rights. -SYLVESTER PETRO The Labor Policy of the Free Society 179 The Private Property Systelll and the Decent Society by Tibor R. Machan T he Western liberal system of values has been suffering from lack of adequate moral support. Ever since the time of Adam Smith, liberal capitalism has tended to be defended on grounds that the pursuit of pri vate profit will benefit the public interest. After all, Smith's great book is called The Wealth of Nations, not The Wealth of Individuals. Yet what capitalism and liberalism stress is that each individual ought to be protected in his or her liberty to act as he or she chooses. This is a far broader claim than what is actually sup ported by even Smith's capitalist economic system.