Tuesday, August 4, 2009

For Your Consideration......

Katherine Tattersfield Private Property: An American Opiate

The Communist Manifesto specifically states that one of Communism’s primary goals entails the following: “Abolition of property in land and application of all rents of land to public purposes” (Marx 27). Anti-communist sentiment, especially in America, often revolves around this seemingly threatening statement. While Marx’s bold declaration may appear frightening at first glance, I contend that American’s needn’t be concerned with the dissolution of so-called private property because, in the United States, the concept of private property is a public illusion. This is by no means an original idea; however, the explanation I will offer is indeed my own.

I’ll begin by defining what I mean by “private property.” For the purpose of this essay, private property refers to land as well as buildings, be they houses, storefronts, or sky-rises. It is important to note that in this instance, private property does not include anything beyond land and/or buildings such as consumer goods, automobiles, and the like. Also, Marx’s definition of private property differs from the one I have proposed, so please don’t assume any relationship between our respective definitions.

Now that I’ve defined private property, let’s explore how this concept has been incorporated into American political thought. During the time of the American founding, European enlightenment philosophy had an enormous impact on colonial political discourse. Locke’s influence is particularly evident in Jefferson’s “Declaration of Independence,” (a document with no legal weight) and many scholars view the American Constitution as an essentially Lockean document. Locke bases his interpretation of natural rights theory on the ownership of property and yet, the word property itself appears nowhere in the basic text of the Constitution of 1789. The term property doesn’t exist in the Constitution until the adoption of the Bill of Rights in 1791. Even then, the Bill of Rights contains no guarantee whatsoever of the right to own property.

Oddly enough, the term appears in the Bill of Rights twice, albeit exclusively within the text of the Fifth Amendment, as part of the due process clause and the takings clause. Its first appearance merely obliges the federal government to abide by an undefined procedure labeled “due process of law” (Ginsberg 36). In other words, the federal government has permission to deprive an individual of his/her property as long as it operates within the confines of unspecified legal requirements. Hence, a clause that ostensibly limits governmental authority actually creates a substantial amount of leeway for the government to exercise its power. Since the government defines due process, the restraints placed upon it are self-imposed and thus more likely to favor the government over the citizen.

Furthermore, property’s second appearance in the Fifth Amendment proves more problematic for Lockean theory. The takings clause, more commonly known as eminent domain, grants the federal government permission to confiscate private property for public use as long as it provides, “[…] Just compensation” (Ginsberg 36). Again, vague terminology reigns supreme as “just compensation” yields a plethora of interpretations and opens the door for abuse of governmental power in a similar manner. For example, the Supreme Court recognizes that private property need not be physically confiscated to constitute a “taking,” but also stipulates that a citizen must prove a total, as opposed to partial, loss of property value before holding the government liable for compensation (Lucas v South Carolina Coastal Council). The Court’s decision clearly favors an expansive interpretation of the governments’ Constitutional authority. Additionally, in Hawaii Housing Authority v Midkiff, the Court found no Constitutional violation in the government’s use of the takings clause to confiscate private property and resell said property to commercial developers for a profit. The Court’s ruling profoundly contradicts Lockean theory, yet the Framers themselves seemingly encourage such conclusions as a result of their collective penchant for ambiguity (O’Brien 1054-1056).

Property reappears one final time in the Constitution via the Fourteenth Amendment due process clause: “[…] Nor shall any State deprive any person of life, liberty, or property without due process of law […]”(Ginsberg 43). Ratified in 1868, the Fourteenth Amendment due process clause seems virtually identical to that of the Fifth Amendment, except for a single, vital distinction, namely the use of one word: state. Originally, the Fifth Amendment and the rest of the Bill of Rights applied only to the federal government and not the individual State governments. The Fourteenth Amendment due process clause imposes the same loose procedural duties on the State governments as the Fifth Amendment mandates at the federal level. Therefore, the aforementioned analysis of the Fifth Amendment due process clause applies to that of the Fourteenth as well. Consequently, the Fourteenth Amendment protects property rights to the same extent as that of the Fifth Amendment, which means a miniscule amount at best.

Of course, government encroachment on property rights does not stop where the Constitution is silent. Indeed, property taxes are tantamount to leasing land from the government, and transform so-called property owners into simple tenants. To a lesser extent, warrants can represent another infringement on property rights. As a result, the typical American reaction to Marx’s elimination of private property appears somewhat misguided. Viewed in this light, the American theory of a diffusion of power hardly seems an appropriate antidote to Marx’s concentrated authority. If anything, Marx’s theory should feel less threatening because Marx avoids the complex legalese the American Framers employed to simultaneously confuse and placate the body politic.

Works Cited
Ginsberg, Benjamin and Eric Ackerman. A Guide to the United States Constitution. New York: W.W. Norton & Company, 2007.

Marx, Karl and Friedrich Engels. The Communist Manifesto and Other Writings. New York: Barnes and Noble Books Inc., 2005.

O’Brien, David M. Constitutional Law and Politics Volume One: Struggles for Power and Governmental Accountability. “The Takings Clause and Just Compensation.” New York: W.W. Norton & Company, 2008.

O’Connor, Sandra Day. “Opinion of the Court in Hawaii Housing Authority v Midkiff.” Constitutional Law and Politics Volume One: Struggles for Power and Governmental Accountability. Ed. David M. O’Brien. New York: W.W. Norton & Company, 2008.

Scalia, Antonin. “Opinion of the Court in Lucas v South Carolina Coastal Council.” Constitutional Law and Politics Volume One: Struggles for Power and Governmental Accountability. Ed. David M. O’Brien. New York: W.W. Norton & Company, 2008.

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