Life, Liberty, Property
As the 20th century draws to a close, the traditional threats to liberty no longer loom large. The downfall of Communism has eliminated the most direct and dangerous challenge, while the economic failures of socialism have discredited the notion that the abolition of private ownership in the means of production solves all social ills. Even though tyrannies still manage to hang on to power here and there, they are either isolated or else slowly yielding to the spirit of the times: the slogans of the day are democracy and privatization.1
Yet these welcome changes by no means signify that liberty’s future is secure: it is still at peril, although from a different and novel source. The main threat to freedom today comes not from tyranny but from equality—equality defined as identity of reward. Related to it is the quest for security.
Liberty is by its nature inegalitarian, because living creatures differ in strength, intelligence, ambition, courage, perseverance, and all else that makes for success. Equality of opportunity and equality before the law—in the sense laid down to the Israelites through Moses in Leviticus 24:22: “Ye shall have one manner of law, as well for the stranger as for the home-born; for I am the Lord your God”—are not only compatible with liberty but essential to it. Equality of reward is not. Indeed, it is attainable only by coercion, which is why all utopian schemes presuppose despotic authority and all despots insist on the equality of their subjects. As Walter Bagehot observed over a century ago, “there is no method by which men can be both free and equal.”
Ironically, the enforcement of equality destroys not only liberty but equality as well, for as the experience of Communism has demonstrated, those charged with implementing social equality claim for themselves privileges that elevate them high above the common herd. It also results in pervasive corruption, inasmuch as the elite that monopolizes goods and services—as must be done if those goods and services are to be equitably distributed—expects, in return for distributing them, rewards for itself.
And yet the ideal of a Golden Age when all were equal because there was no “mine and thine” has never ceased to appeal to humanity: it is one of our persistent and seemingly indestructible myths. In the contest between equality and liberty, the former holds the stronger hand, because the loss of liberty is felt only when it occurs, whereas the pain of inequality rankles every moment of the day.
The trend of modern times appears to indicate that citizens of democracies are willing heedlessly to surrender their freedoms to purchase social equality (along with economic security), apparently oblivious of the consequences. And the consequences are that their ability to hold on to and use what they earn and own, to hire and fire at will, to enter freely into contracts, and even to speak their mind is steadily eroded by governments bent on redistributing private assets and subordinating individual rights to group rights. Despite the commendable reforms of recent years in the United States, the entire concept of the welfare state as it has evolved in the second half of the 20th century stands in tension with individual liberty, for it allows various groups with common needs to combine and claim the right to satisfy them at the expense of society at large, in the process steadily enhancing the power of the state that acts on their behalf.
This reality is currently masked by the immense wealth generated by the industrial economies operating on a global scale in time of peace. It could become painfully apparent, however, should the economic situation drastically deteriorate and the controls established by the state in time of prosperity enable it to restore social stability at the cost of freedom.
Returning the responsibilities for social assistance to the family or private charities, which shouldered them prior to the 20th century, would undoubtedly go a long way toward resolving this predicament. But such a radical solution is neither feasible nor desirable. The libertarian ideal of a society in which the government runs nothing is as unrealistic as the utopian ideal of one in which it runs everything. Even at the height of laissez-faire, government everywhere intervened in some measure in economic and social affairs: the notion of a passive state is as much a myth as that of primitive Communism.
This does not mean, however, that it is impossible to find a sensible alternative to the two extreme positions. In dealing with the scope of state power, the question is not either/or—either none or all-embracing—but more or less. When, in the 19th century, the Supreme Court found it necessary to intervene in private contractual engagements—and it did so with great reluctance—the interference was often accompanied by the cautionary adjective “reasonable.” Today, although the state must regulate more than ever, such caution is correspondingly more necessary than ever. It must be remembered that the economic rights of citizens (rights to property) are as essential as their civil rights (rights to equal treatment), and that, indeed, the two are inseparable.
Although the concept of human nature has fallen into disfavor, it is difficult to escape the conclusion that there do indeed exist certain constants in human behavior. One of these constants, impervious to legislative and pedagogic manipulation, is acquisitiveness.
In and of itself, the desire to possess manifests greed no more than the appetite for food manifests gluttony, or love lechery. Acquisitiveness is common to all living things, being universal among animals and children as well as adults at every level of civilization. On the most elementary level, it is an expression of the instinct of survival. But beyond this, it constitutes a basic trait of the human personality, for which achievements and acquisitions are means of self-fulfillment. And since fulfillment of the self is the essence of liberty, liberty cannot flourish when property and the inequality to which it gives rise are forcibly eliminated.
In addition to being the most important of liberties, acquiring property is the universal engine of prosperity. The close relationship between property and prosperity is demonstrated by the course of history. Although property in personal belongings is well-nigh universal and known since the dawn of humanity, the ownership of agricultural land—the principal source of livelihood until very modern times—originated in ancient Greece and Rome, and since the Middle Ages spread to the rest of Europe and regions populated by Europeans. One of the main reasons for the rise of the West to its position of global economic preeminence lies in this institution of property, which in much of the rest of the world has led and still leads a rather precarious existence.
The indispensability of property for prosperity can be demonstrated empirically for the contemporary world. The results are impressive in their consistency. Countries that provide the firmest guarantees of economic independence, including private property rights, are virtually without exception the richest. They also enjoy the best civil services and judicial institutions. Today this holds true not only for countries populated by Europeans but also for Japan, South Korea, Hong Kong, Chile, and Taiwan. Conversely, countries that rate lowest in terms of property rights and market freedom—Cuba, Somalia, and North Korea, for instance—languish at the bottom of the scale.
The relationship of property to freedom is more complex, because unlike prosperity, “freedom” has more than one meaning. Thus it is possible to enjoy firm property (economic) rights without political rights, that is, the right to vote. In Western Europe, property rights were respected long before citizens were granted the franchise. Today, some of the most prosperous countries (Singapore, Hong Kong, Taiwan) with the firmest guarantees of property are run in an authoritarian fashion.
It is a serious mistake, unfortunately often committed by the U.S. government in its foreign dealings, to define freedom to mean exclusively democracy, for ordinary citizens may enjoy a wide range of economic and legal freedoms along with personal rights without being able to choose their government. The mistake is probably due to the fact that Americans, as heirs and beneficiaries of English constitutional development, take such freedoms and rights so much for granted that they identify freedom with representative government. The historical evidence indicates that property can coexist with arbitrary and even oppressive political power. Democracy, however, cannot do without it.
The symbiotic relationship between property and freedom does not preclude the state from imposing reasonable restraints on the uses made of objects owned, or ensuring the basic living standards of the neediest strata of the population. Clearly, one cannot allow property rights to serve as a license for ravaging the environment or ignoring the fundamental needs of the unemployed, sick, and aged. Hardly anyone contests this proposition today: even Friedrich Hayek, an implacable foe of state intervention in the economy, agreed that the state has the duty to ensure for all citizens “a minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work.”
But to say this is not to grant the state the authority to use the powers at its disposal to interfere with the freedom of contract, to redistribute wealth on a large scale, or to compel one part of the population to bear the costs of the government-defined “rights” of special constituencies. This is precisely the situation we now face, in particular in the form of limitations on the use of property imposed by various environmental or zoning laws and regulations.
Such limitations should surely be interpreted as “takings” under the Fifth Amendment and adequately compensated. Unfortunately, as the political scientist William Riker has written, this runs counter to the entrenched attitude of the highest organs of the judiciary, which since the late 1930’s have assumed “that civil rights and property rights can be sharply distinguished, and that civil rights . . . merit greater judicial protection than property rights.”2 Yet only by a redress of the balance—through court decisions and de-regulatory rulings of the government—can the rights of ownership be restored to their proper place in the scale of values instead of being sacrificed to the unattainable ideal of social equality and all-embracing economic security.
Not only do “civil” and “property” rights need to be balanced if we care about freedom, but the whole concept of civil rights requires reexamination. The Civil Rights Act of 1964 gave the government no license to set quotas for hiring personnel in private enterprise or for admitting students to institutions of higher learning; and yet for decades the federal bureaucracy has acted as if it had. Even less did the Act authorize interference with freedom of speech in the workplace in matters of so-called “sexual harassment.” But even as property rights have been steadily narrowed in application, the category of “civil rights” has been broadened to include the claims of any group—women, minorities, the disabled, and so forth—to goods and services that fellow citizens must pay for either by sacrificing some of their own rights or else by footing the bill.
The plain truth is that the so-called “social rights” of today, having been bestowed by legislative fiat, are not “rights” in any meaningful sense and certainly not “entitlements,” since no one is entitled to anything at someone else’s expense; they are, rather, claims on society that it may or may not grant. Nevertheless, in the name of such spurious rights, a large number of citizens in modern industrial democracies are now required to work for the support of others.
In Sweden, the most retrograde state in this respect, for each citizen who earns his own living, 1.8 other citizens are fully or partially maintained by taxes that he is required to pay; in Germany and Great Britain, the ratio is 1:1, and in the U.S., 1:0.76. Because the population dependent on the state includes a heavy proportion of the elderly while the taxpayers are younger wage and salary earners, an unhealthy generational conflict may well develop in welfare societies as the population ages. We see glimmerings of such a conflict in the current dispute in this country over Social Security.
Unless the greatest care is exercised in protecting the rights to property, we may well end up with a regime that, without being tyrannical in the customary sense of the word, is nevertheless unfree. The framers of the American Constitution did not anticipate this possibility: in the words of the 20th-century jurist Roscoe Pound, “They intended to protect the people against their rulers, not themselves.” But, as it has turned out, under conditions of modern, welfare-oriented democracy, the threat to liberty can also emanate from one’s fellow citizens, who, increasingly dependent on government largesse, often care more about their personal security than about general freedom.
“Experience,” wrote Justice Brandeis,
should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding.
The reason for this is that despotism appears in two distinct guises. There is the arbitrary rule of absolutist monarchs or dictators, elected by no one and subject neither to constitutional nor parliamentary restraints. And there is the tyranny in democratic societies of one part of the population over another: that of the majority over the minority but also—where elections are won with pluralities—of minorities over the majority.
Czarist Russia in its classical guise provided an extreme example of traditional despotism. There, the authorities could detain, imprison, or exile any subject without due process; they could confiscate his properties; they legislated as they saw fit. And yet, in practice, the average Russian under the old regime had scarcely any contact with the government and felt little interference from it, because the scope of government activity was very narrow, being largely confined to the collection of taxes, the drafting of recruits, and the preservation of the established order.
Today, the scope of government activity is immeasurably broader, and not only in authoritarian regimes but in a democracy like our own. Our government is elected, to be sure, but its interference in the life of citizens is greater than it has ever been. This is true at every level, from the federal down to that of the states and localities; in the latter, indeed, the recent expansion of government, partly under the aegis of “devolution,” has reached striking proportions.
As Hayek pointed out, the broadening of the scope of government, in and of itself, carries seeds of a despotism at least as invidious as the traditional kind. Hayek’s main concern was with protecting liberty from the seemingly unstoppable trend in Western democracies to subject the national economy to planning, which, he felt, would inevitably lead to tyranny. His fears in this respect proved unfounded. But his observations on the dangers implicit in the extension of the government’s reach retain their validity:
[T]he probability of agreement of a substantial portion of the population upon a particular course of action decreases as the scope of state activity expands. . . . Democratic government worked successfully so long as, by a widely accepted creed, the functions of the state were limited to fields where real agreement among a majority could be achieved. The price we have to pay for a democratic system is the restriction of state action to those fields where agreement can be obtained; and it is the great merit of a liberal society that it reduces the necessity of agreement to a minimum compatible with the diversity of opinions which in a free society will exist.
This reasoning explains why government interference in the life of the citizenry even for benevolent purposes endangers liberty: it posits a consensus that does not exist and hence requires coercion.
But well-meaning patriarchalism also enervates people by robbing them of the entrepreneurial spirit implicit in freedom. What harm long-term dependence on the welfare state can inflict became apparent after the collapse of the Soviet Union, when a substantial part of the population, suddenly deprived of comprehensive state support and unaccustomed to fending for itself, came to yearn for the restoration of the despotic yoke.
To be sure, Soviet Communism represented the most determined effort ever undertaken to condition people’s thoughts and behavior, and nothing remotely like it is on the horizon in today’s United States. Moreover, one can even point to a number of hopeful countervailing trends here, including recent decisions of the Supreme Court favoring property owners in their disputes with local authorities, the reform of welfare, and limitations on racial preferences in employment and higher education.
Nevertheless, for a variety of reasons, including the fact that our schools fail to teach history, the vast majority of today’s citizens have no inkling to what they owe their liberty and prosperity—namely, a long and successful struggle for rights of which the right to property is the most fundamental. They are therefore unaware of what debilitating effect the restrictions on property rights will, over the long run, have on their lives.
The aristocrat Tocqueville, observing the democratic United States and his native bourgeois France a century and a half ago, had a premonition that the modern world faced dangers to liberty previously unknown. “I have no fear that they will meet with tyrants in their rulers,” he wrote of future generations, “but rather with guardians.” Such “guardians” would deprive people of liberty by gratifying their desires and would then exploit their dependence on such generosity. He foresaw a kind of democratic despotism in which “an innumerable multitude of men, all equal and alike,” would incessantly strive to pursue “the petty and paltry pleasures with which they glut their lives.” Hovering over them would be the benign paternalistic government—the modern welfare state:
For their happiness such a government willingly labors, but it chooses to be the sole and only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
Is this what we want?
1 This holds true despite the fact that the ex-Communist countries which have recently adopted democracy and privatization, most notably Russia, are experiencing immense difficulties in adopting the Western model. It must be borne in mind that even the Communist parties of these countries no longer talk of a return to the Soviet model. They want to blend democracy and the market with social-welfare policies and a certain degree of government intervention in the economy—not an infeasible combination.
2 The fictitious contrast between the “rights of property” and the “rights of men” was drawn as early as 1910 by Theodore Roosevelt and restated by Franklin Delano Roosevelt in 1936. See Tom Bethell, The Noblest Triumph, which I reviewed in the November 1998 COMMENTARY.