As I explained with my private property model earlier, it is not a natural right. The Founders were wrong about this, John Locke was wrong about this and so is Mark Levin. In the chapter “On the Constitution” Levin acknowledges this counterargument as made by Cass Sundstein (one of them Harvard Law academics) and then dismisses it. OK, then, on what grounds besides the opinions of other scholars does Levin assert that private property is a natural right? Levin states, completely made up from the top of his head one assumes, that since humans were not the physically most fit in regards to any physical attribute, private property came to the rescue as an essential survival tool endemic to our nature.
Since I am trained specifically in this area allow me to run with Levin’s tangent a bit. “Survival of the fittest” is a bit of a misnomer. The name of the survival game, so to speak, is to carve out a unique niche. The more unique the niche, the less energy needs to be devoted to competition, the better the chance for survival. Establishing unique niches is not the product of being the “fittest” at any physical trait so much as putting together a unique combination of traits.
The uniqueness of the human niche involves the combination of our large brains, opposable thumbs and intense altruism. In fact, come to think of it, we may be the “fittest” in regards to all those traits. We probably could have survived as a species even without hunting tools and weapons; but even if that is not the case, what our early ancestors used were tools shared by all and not private property in the sense that Levin wants us to believe. Levin starts this chapter by saying “words matter;” it does not take long for him to get off track.
So, private property was not key to our survival, endemic to human nature or in any sense a natural right. Still, Levin is correct that at least the Founders believed this, and they frowned on tinkering too much with their well-crafted documented. … Or, more specifically, the early states-rights agrarians such as Madison and Jefferson were getting antsy about tinkering. The reason for this is that the Federalists, such as with John Adams packing the Judicial Branch of government, were the ones doing the tinkering early on. Recall that the Federalist Court were ancestors to the Laissez Faire Court.
It’s one thing when a Statist Court uses substantive due process to overrule private property as a right. Levin refers to Roosevelt’s Second Bill of Rights as an instigator for this sort of trend. The Second Bill of Rights is sort of a “maximin” philosophy alleging that everyone is entitled to a minimum level of affluence. You can oppose this stance as an “originalist” claiming that the words of the Constitution matter, as Levin does, and believe in the sanctity of private property at the same time. There is no conflict in this case. Because of my own grassroots philosophy I share Levin’s apprehension regarding the paternal implications behind this Second Bill of Rights, though as an empiricist dedicated to actual experiences I should point out that early social groups “taking care of their own” was indeed natural, unlike private property.
While Supreme Court Justices have been academic elites as Levin charges, they also tend to overwhelmingly represent wealth and power elites. Many, in fact, have been corporate lawyers. The Federalists and their descendants always have been supportive of paternal activism for protecting private property, linking private property with liberty and using this foundation as tools for government to command advantages for corporations. The Federalist or Laissez Faire Court has been more prominent in our country’s history, in continuous session from John Marshall up until the New Deal, and then once again from the seventies until the present. If Levin abhors judicial activism, then he abhors the Laissez Faire Court using substantive due process to assert the liberty of contracts over state legislature attempts to protect workers, or to assert that money is free speech over state legislature attempts at campaign finance laws. If he supports those decisions, or for that matter if he supports the Marshall Court usurping their position as final arbiters of the Constitution, he is a hypocrite instead of an originalist in favor of representative government.
Alleging that there has been a Statist Court since the New Deal is the central piece of misinformation here. How Levin reacts to a Laissez Faire Court using substantive due process to overturn state legislatures would reveal the purpose of this misinformation. I will get to that next.
Here is previous background material.
An overview of misinformation principles
A basic understanding of free markets
A basic understanding of property
Tags: Liberty and Tyranny
