Published on August 30, 2010 by Thomas West -- Abstract: Although there are many scholarly treatments of the Founders’ understanding of property and economics, few of them present an overview of the complete package of the principles and policies upon which they agreed. Even the fact that there was a consensus among the Founders is often denied. Government today has strayed far from the Founders’ approach to economics, but the older policies have not been altogether replaced. Some of the Founders’ complex set of policies to protect property rights are still in force. America has abandoned the Founders’ views on the gold and silver standard, the prohibition of monopolies, the presumption of freedom to use property as one likes, freedom of contract, and restricting regulation to the protection of health, safety, and morals. But in other respects, America continues to offer a surprising degree of protection to property rights in the Founders’ sense of that term.In light of the stark differences between the economies of the present day and the late 18th century in which the Founders lived, can we learn anything about economics by studying the principles and approach of our Founders? Perhaps surprisingly, the answer is “yes.” If we look to the actions they took and the rationale they offered for their actions, we will see that the Founders’ approach still offers us a guide to pressing economic questions of our day. Although there are many scholarly treatments of the Founders’ understanding of property and economics, few of them present an overview of the complete package of the principles and policies upon which they agreed. Even the fact that there was a consensus among the Founders is often denied. Scholars who study this topic often focus on their differences rather than their agreements. It is true that there were bitter disputes over particular policies during the Founding era, such as the paying of the national debt, the existence of a national bank, and whether to subsidize domestic manufactures, and these differences seemed tremendously important in the 1790s. But in spite of these quarrels, there was a background consensus on both principles and the main lines of economic policy that government should follow. John Nelson’s verdict on the 1790s is sound: “[W]hen the causes of the slow dissolution of consensus among America’s ruling elites after ratification of the Constitution are detailed, the evidence points to specific disagreements over programmatic issues and not fundamental schisms over the essential role of government.”The danger is that by concentrating on these and other Founding-era contests, we will fail to see (as the Founders themselves often failed to see) their agreement on the three main policies that, taken together, provide the necessary protection of property rights: the legal right to own and use property in land and other goods; the right to sell or give property to others on terms of one’s own choosing (market freedom); and government support of sound money. Their battles were fought over the best means to those ends and over such subordinate questions as whether and how large-scale manufacturing should be encouraged. The Founders’ approach to economics, when it is discussed by public figures and intellectuals, has been much criticized. One reason many on the Left reject the Founders’ economic theory is that they think it encourages selfishness and leads to an unjust distribution of wealth. The prominent liberal thinker Richard Rorty believed that the “moral and social order” bequeathed to Americans by the Founders eventually became “an economic system which starves and mutilates the great majority of the population.” Such is the “selfishness” of an “unreformed capitalist economy.” For this reason, there is “a constant need for new laws and new bureaucratic initiatives which would redistribute the wealth produced by the capitalist system.”Another common opinion is that the Founders’ view of economics is obsolete. It may have been reasonable to protect property rights and free markets in a simpler time with vast tracts of available land, but these policies, we are told, cannot address the problems of today’s complex industrial society. William Brennan, the Supreme Court’s leading liberal during the second half of the 20th century, wrote:
Until the end of the nineteenth century, freedom and dignity in our country found meaningful protection in the institution of real property…. [B]efore this century…a man’s answer to economic oppression or difficulty was to move two hundred miles west. Now hundreds of thousands of Americans live entire lives without any real prospect of the dignity and autonomy that ownership of real property could confer.Besides this supposed problem of the closing of the frontier, many economists claim that the modern economy is subject to “market failure,” or the inability of free markets to provide a fair allocation of goods and services. This view assumes that current knowledge of economics and production is unquestionably superior to that of the long-dead amateurs who founded the American regime. Even many conservative intellectuals are quick to criticize the Founders’ work in establishing a free economy, arguing that market capitalism is a system which undermines morality and erodes the character of citizens.All of these criticisms—that the Founders’ approach to economics is unjust, that it is too primitive to be applied today, and that it cultivates selfishness and undermines morality—are based on a caricature of the Founders’ actual approach to economics. As for the Founders’ supposedly primitive understanding of economics, we will see that their views were remarkably sophisticated and arguably superior to the dominant views of our day. They provide principles and policies by which even the most complex economic order can be governed. And the economic system they established, far from appealing to greed and selfishness and leading to an unjust distribution of wealth, has helped to create the wealthiest nation in human history—a nation in which even those Americans who are classified as poor enjoy prosperity unimaginable to the wealthiest citizens of a few generations ago.
The Justice—and Utility—of the Right to PropertyIn the Founding era, defenses of property rights proceeded along two main lines: justice and utility. The justice approach treats property as a fundamental right that it would be morally wrong to infringe, regardless of whether it served a useful purpose. The Continental Congress declared in 1774, for example, that “by the immutable laws of nature,” the people “are entitled to…property.” In the Virginia Declaration of Rights (1776), property is an “inherent” right. Massachusetts (1780) called it a right “natural, essential, and unalienable.” Four other states used similar language. Viewed in this way, to deprive someone of his property is to violate a right—to commit an injustice. Over the past two centuries, writes Greg Forster, “the moral argument for capitalism became less prominent. The case for capitalism was more often made on efficiency grounds alone.” Earlier defenders of property rights—“from Aquinas to Locke to our own time—have successfully availed themselves of both approaches.”The Founders’ argument from justice rests ultimately on the claim that “all men are by nature equally free and independent, and have certain inherent rights,” one of which is “the means of acquiring and possessing property.” All six of these early state declarations of rights use almost the same language. In this understanding, all are born free; that is, they own their own minds and bodies. Since all are free, all may freely use their talents to acquire property and to keep or use the property they acquire. For individuals or government to forcibly prevent someone from acquiring property, or to use coercion to transfer property from one person to another, deprives that person of the fruits of his labor. It is a violation of his liberty as well as his property. From the point of view of justice, deprivation of property rights is immoral. Property rights were also understood and defended in terms of their usefulness to life and society, independently of the question of justice. The Founding generation argued that protecting property rights was the best way to ensure prosperity for society. Charleston, South Carolina, affirmed that without property rights, “soon would desolation frown over the uncultivated earth.” But property is also a means to something more than mere life. It is necessary for liberty and happiness. There is, then, both a low (mere life) and a high (freedom and happiness) use of property. Everyone needs food, clothing, and shelter, and therefore has a right to acquire and possess these goods, for the sake of mere life and for the sake of the good life—of happiness. Government must protect that right so that people can survive and thrive. Defenders of property rights today generally neglect the first way of treating property (as a matter of justice) and turn instead to the second way (expedience or utility). However, the utility of private property is typically described in terms of material abundance as opposed to life, freedom, and happiness. When property rights are no longer spoken of in terms of justice, and when usefulness is defined in merely materialistic terms, capitalism comes to be seen as low and ignoble. This is, of course, a widespread conviction in our time.The Right to Possess and Acquire PropertySo far, I have spoken of “property rights” as though the meaning of that phrase is obvious. It is not. To begin, we must dispose of the most common misconception. It is a mistake to think of property rights merely in terms of possession of what one already has. Adopting this error, law professor Kenneth Karst, for example, writes that “the protection of property and economic liberty” is something that matters only “to people at the top of the heap.” Karst is thinking of property as something that the rich possess and the poor lack, but this is to conceive of property as static rather than dynamic, as if one person’s ownership is another’s deprivation. This view of property rights is summed up in the well-known cynical remark, “[T]he majestic equality of the laws…forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”The Founders anticipated this criticism by insisting that the right to property includes not only possession of what one has, but also acquisition of what one needs. The Virginia Declaration of Rights states that “all men…have certain inherent rights,” including “the means of acquiring and possessing property.” Five other state constitutions omit “the means,” but all speak of the right of “acquiring, possessing and protecting property.” If the right includes both acquiring and possessing property, then it is not enough to be allowed to keep what you possess. Such a right would benefit only those who already have what they need. There must be some “means of acquiring” more than one already owns so that the poor as well as the rich can benefit from property rights. In the Founding, the right to acquire property precedes the right to possess it because the right to acquire is the foundation of the right to possess, not only because of the needs of the poor, but also because of the natural right to liberty itself. As James Madison’s Federalist 10 explains, 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.” Madison is saying that property rights originate in the fact that each person owns himself, his “faculties” (his mind, body, and talents). This is the basic premise of the Founders’ natural law approach: “all men are born free” means that no one has a natural right to own anyone else. There are no natural masters or natural slaves. Therefore, the first object of government is not to protect the physical property acquired by the employment of our faculties, but to protect the faculties themselves. They are the means of acquiring property, as Madison says: “From the protection of different and unequal faculties of acquiring property, the possession…of property immediately results.”No one would make the effort to acquire anything that would immediately be stolen. The right to acquire is primary, for possession serves acquisition. Government protects the possessions of the rich in order to guarantee the right of the non-rich to acquire what they need for their convenience and happiness.Is There a Conflict Between Possession and Acquisition?The existence of a natural right to acquire property leads to a surprising consequence. If everyone has a right to acquire and to possess property, a conflict between the haves and have-nots will be unavoidable in a condition of extreme scarcity. Unless the possessors voluntarily choose to spread their wealth around, those who are starving will have no way of getting what they need except by theft or violence. One might argue that there is no conflict of rights here because, as John Locke writes, “it would always be a sin, in any man of estate, to let his brother perish for want of affording him relief out of his plenty.” But Locke supposes a state where some property owners have “plenty.” What happens when the possessors do not have “plenty,” but only barely enough to subsist? Then one party or the other must starve. The non-owners will have a right to acquire, and the owners will have a right to defend their possessions. It will be a war of all. This potential and sometimes actual conflict between natural rights was also acknowledged during the Founding era. The property rights of the individual cannot always be respected when the survival of the community is at stake—for example, in a time of foreign invasion. In an 1810 letter, Jefferson recalls examples of grave but necessary government inroads on property rights during the Revolutionary War:
When, in the battle of Germantown, General Washington’s army was annoyed from Chew’s house, he did not hesitate to plant his cannon against it, although the property of a citizen. When he besieged Yorktown, he leveled the suburbs, feeling that the laws of property must be postponed to the safety of the nation.Would the Founders’ principles lead to the conclusion, then, that socialism or some other scheme of government redistribution of income could be the most just economic order? Using government coercion to redistribute property certainly violates the natural right to possess property, but what if this policy is the best way to enable everyone to exercise their right to acquire it? Would that not be in greater conformity with natural right than the starvation or deprivation of the poor? That conclusion would follow only if there is no way to reconcile the right to acquire and the right to possess. The Founders’ natural rights principles therefore require the analysis of an empirical question: What government policies most effectively enable property owners to keep their property while enabling everyone else to acquire property of their own? The answer requires an understanding of how wealth is produced. Economics thus becomes an indispensable part of the practical application of natural law and natural rights. Someone might object that an analysis of the facts of economic production has nothing to do with natural law. We seem to be exceeding, and therefore exposing, the limits of the natural rights theory. But this objection misunderstands the idea of natural right. The theory provides only the basic principles of moral and political order. It does not lead self-evidently to a complete legal code. The challenges in the application of natural law to political life arise from nature itself, which gives us the goals and the broad, general rules but leaves it up to us to find out what laws and government structure best achieve those goals. It is easy to state that there is a natural right to acquire and possess property, but it is a much more difficult task to spell out what rules will enable everyone to exercise the right to acquire property effectively. That is what we will now proceed to explain.Elements of Economic Theory in the FoundingFor the Founders, government has an extensive set of responsibilities that it must fulfill in order to enable people to exercise their right to acquire and possess property. There are three main Founding-era economic policy principles that make possible sufficient production, for rich and poor alike, of the goods that are needed for life and the pursuit of happiness.
- The first principle is private ownership. Government must define who owns what, allow property to be used as each owner deems best, encourage widespread ownership among citizens, and protect property against infringements by others, including unjust infringement by government itself.
- The second principle of sound policy is market freedom. With some exceptions, everyone must be free to sell anything to anyone at any time or place at any mutually agreeable price. Government must define and enforce contracts. Means of transportation must be available to all on the same terms.
- The third principle is reliable money. To facilitate market transactions, there must be a medium of exchange whose value is reasonably constant and certain.
And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.In the Founding, a voluntary contract between two individuals or associations was understood as a sign of the equality between them. Each agrees to give up some of his own property in exchange for property that he values more than his present possession. In an employer–employee relation, the owner has money that he wants to exchange for labor, while the workers have, to quote Madison’s article on property, “free use of their faculties, and free choice of their occupations, which…constitute their property in the general sense of the word.” Historian William Forbath writes that “abolitionists talked about the freedom of the Northern worker in terms of self-ownership, that is, simply not being a slave, being free to sell his own labor.”There was one exception to the rule that everyone is legally obliged to fulfill his contractual obligations. In colonial America and even after the Founding, when a person did not have enough property to pay, he was sometimes sent to debtors’ prison. Recognizing that the inability to pay debts is not necessarily due to a moral fault, states began to allow bankruptcy. The U.S. Constitution authorizes Congress to “establish…uniform laws on the subject of bankruptcies throughout the United States.”Freedom of contract is viewed with widespread suspicion today. Many believe that such freedom leads to exploitation and oppression of workers by employers. America now limits freedom of contract in many ways: for example, by minimum wage laws, laws that allow unions to coerce employers into bargaining, and affirmative action and disability laws that deny employers the right to hire and fire as they choose.Policy #3. There must be equal access to transportation.The privileges of citizenship protected in the Constitution and by the state governments included the right to travel and to have access to “common carriers” such as coaches, ships, and (later) railroads. The Northwest Ordinance explicitly guaranteed access to the public waterways and highways that were used to transport goods to market.Stable MoneyBesides private property and free markets, there is a third major requisite for the protection of property rights: money. In particular, there must be a stable and reliable measure of market value. The reason is simple: If there is no stable measure of market value, the prices of goods and services can fluctuate rapidly. Rapid fluctuation in prices means that debts and investments can be eliminated through inflation, and property can be taken by manipulating the supply of money. Lack of money was a major difficulty that almost led to the failure of the American Revolution. Congress, lacking the power to tax, issued “bills of credit,” paper money known as “Continentals.” The state governments did the same. By 1780, these bills had lost almost all of their face value. Historian Forrest McDonald explains that this policy, in effect, “engineered a massive expropriation of private property through a calculated policy of inflation.” James Madison later justified this dishonesty by pointing to the desperate situation of a war for national survival: “Being engaged in a necessary war without specie [gold or silver] to defray the expense, or to support paper emissions for that purpose redeemable on demand, and being at the same time unable to borrow, no recourse was left, but to emit bills of credit, to be redeemed in future.”Congress and the states also financed the war by borrowing money from American and European lenders. These loan certificates were eventually paid off as a consequence of Hamilton’s financial policies in the 1790s, but the worthless bills of credit were never redeemed.Due in large part to these difficulties and the subsequent economic turmoil caused by manipulation of money by both state and national governments during the 1780s, there was a strong demand for an end to government-issued paper money. The remedy was to be a return to the gold and silver standard. The U.S. Constitution therefore specifies that the states may not “coin money; emit bills of credit; [or] make any thing but gold and silver coin a tender in payment of debts.” Emitting bills of credit was not on the list of powers given to Congress. “Fiat” paper money (bills of credit), issued by the U.S. government (and every other government in the world) since the 1930s, was precisely what the Framers of the Constitution were trying to prevent. James Madison summarized the Founders’ arguments against fiat money in Federalist 44, where he wrote that:
The extension of the prohibition to bills of credit must give pleasure to every citizen in proportion to his love of justice, and his knowledge of the true springs of public prosperity…. [S]ince the peace, [America has suffered] from the pestilent effects of paper money, on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of Republican Government.Here, importantly, Madison explained that the problems of fiat money were both moral and economic. The argument was as much about justice, character, and morality as it was about economic efficiency and prosperity.Legitimate Restrictions on Property Use and Free MarketsAn objection to the preceding analysis may be raised. Not only did all of the states engage in regulation of commerce, but Congress too was given the power to “regulate commerce with foreign nations, and among the several states.” Is not regulation a power of government to interfere with market freedom? Does this not demonstrate that the Founders were not as devoted to free markets as I have maintained? The answer depends on what sort of regulation we are discussing.First, some regulations, such as prohibitions of excessively loud or dangerous activities in crowded neighborhoods, benefit property owners generally. They are meant to enable every owner to enjoy the use of his property as much as possible, consistent with other owners’ enjoyment of their property. Negligent use of property, such as reckless driving, can lead to fatal accidents. These are “police power” regulations that protect the public health, safety, and morals. They do not conflict with the Founders’ natural law theory. In fact, they are required by it.Second, government may intrude on private property by taxation. Since government really does provide a service to the people (securing their natural rights), the Founders viewed it in the same light as they viewed any other “producer” who asks for compensation for providing something of value to the consumer. As the Massachusetts Constitution stated, everyone is obliged “to contribute his share to the expense” of government protection of the person and property of all.Third, the misuse of property can harm others in more subtle ways. In his Lectures on Law, James Wilson writes that:
[Nuisances are] a collection of personal injuries, which annoy the citizens generally and indiscriminately…. [P]ublic peace, and order, and tranquillity, and safety require them to be punished or abated…. To keep hogs in any city or market town is a common nuisance. Disorderly houses [brothels] are public nuisances…. Indecency, public and grossly scandalous, may well be considered as a species of common nuisance.In Wilson’s list of nuisances, he links together things that we would think of as distinct: the stink created by hogs in a city, the use of property as a place to sell sexual favors, and public obscenity and nudity. The case of hogs is easiest to understand. Wilson’s assumption is that the right to use one’s property for any purpose must be limited by the principle that one should use one’s own property in such a way that it does not injure another’s. Vile odors can impair or destroy the use of one’s property (for example, as a residence) no less than arson can. As for brothels, when Wilson compares them to pigsties, he implies that they create what one might call a “moral stink.” To explain this, one would have to consider the Founders’ view that the preservation of a self-governing society, including the security of property rights, presupposes a certain character in the citizens. In particular, the integrity of the family, the institution for the generation and civilizing of children, was thought to require self-restraint in sexual conduct. The public sale of sex was believed to contribute to a moral atmosphere hostile to the sexual fidelity required for stable families. The same concern informed the prohibition of public nudity and obscenity.This brings up a topic that is rarely treated as part of economic theory: the relation between the character of a people, including the integrity of the family, and the security of property rights. The Founders did not believe that property rights or any other kind of rights could be protected without some degree of self-restraint, reasonable self-assertion, and public beli ef in the natural law and natural rights ideas of the Founding.
Objections and ComparisonsThere are two final objections that deserve at least a brief response. Ralph Lerner argues that the commercial republic produced by the Founders’ natural law principles is “built on” “the common passions for private gratification and physical comfort.” This raises a question: Did the Founders undertake heroic labors for unheroic or even base objectives? Is there any place in the society created by the Founders for beauty, poetry, or greatness? Or is the pursuit of economic self-interest the highest thing that people strive for in a free-market society? The Founders were wise enough to know that property is not an unambiguous good and not the highest object of human pursuit. “From the conclusion of this war,” wrote Jefferson in 1781, “we will be going down hill.” The people “will forget themselves, but in the sole faculty of making money.” John Adams worried that “without virtue, there can be no political liberty…. Will you tell me how to prevent riches from being the effects of temperance and industry?… Will you tell me how to prevent luxury from producing effeminacy, intoxication, extravagance, vice, and folly?”Hamilton wrote, “True liberty, by protecting the exertions and talents of industry, and securing to them their justly acquired fruits, tends more powerfully than any other cause to augment the mass of national wealth and to produce the mischiefs of opulence.” However, after acknowledging the difficulty, Hamilton then posed this sensible question: “Shall we therefore on this account proscribe liberty also?… Tis the portion of man assigned to him by the eternal allotment of Providence that every good he enjoys shall be alloyed with ills, that every source of his bliss shall be a source of his affliction—except virtue alone.”In response to these concerns, the Founders developed policies and practices that would help to sustain a society not only where public spirit and self-restraint would not be overwhelmed by the wealth and money-making spirit unleashed by freedom, but also where they would be encouraged by a variety of private institutions and public policies. The 20th century forgetting of the Founders’ understanding may be seen in a story told by President Dwight Eisenhower. At the end of World War II, Eisenhower commanded the armed forces of America and its Western allies, while Georgy Zhukov commanded the Soviet forces. After the war, Eisenhower toured the Soviet Union with Zhukov. Eisenhower later reported:
[O]ne evening we had a three-hour conversation. We tried, each to explain to the other just what our systems meant, our two systems meant, to the individual, and I was very hard put to it when he insisted that their system appealed to the idealistic, and we completely to the materialistic. And I had a very tough time trying to defend our position, because he said: “You tell a person he can do as he pleases, he can act as he pleases, he can do anything. Everything that is selfish in man you appeal to.”Eisenhower, who served America honorably during the war, had a “very tough time” defending America’s system of self-government and free enterprise against the verbal attack of a high-ranking official in an oppressive Communist system whose leader was the mass murderer Joseph Stalin. Clearly, Eisenhower no longer embraced or even understood the view of the Founders, for whom, as was often said in the Founding era, liberty “is totally different from licentiousness. Many have no other idea of liberty, but for everyone to do as he pleases—to be as honest as he pleases—to be as knavish as he pleases…. Such a liberty…ought to be done away with.” Capitalism, after all, requires people to keep their legally binding promises and pay their debts. Nor would the Founders have hesitated for a moment to repudiate a claim of “idealism” raised by Zhukov, a man whom they would have regarded as a minion of a bloody tyrant. If “idealistic” policies are those that enable the poor to escape poverty and allow all to live in freedom (not licentiousness) under law, then the most idealistic economic order is one that secures the natural right to acquire and possess property. At the end of the Declaration of Independence, the Founders pledged to each other “our lives, our fortunes, and our sacred honor.” They did not think they were striving for an unworthy goal. They were prepared to give up life and property in the noble fight to establish a nation based on the true principles of justice: a nation that would secure the lives and property of their families and descendants. Such a nation was judged worthy of their devotion because they believed that justice is the purpose of civil society. If all went well, America was going to be the most just nation ever created. The opposite of life, liberty, property, and the pursuit of happiness is not some sort of transcendent political perfection. It is death, slavery, poverty, and misery. A second objection may be raised: Property rights will lead to inequality in the distribution of property. The Founders were aware of this. In Federalist 10, as noted, Madison correctly observes that “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.” People with more talent and ambition will generally acquire greater wealth. Can that be just? The Founders’ answer was “yes,” for two reasons. First, no adult can justly be compelled to submit to the will of another. Whatever differences in wealth may emerge, property rights benefit all classes equally insofar as they protect the body and mind of every individual from exploitation or enslavement by others. Whenever government uses compulsion to redistribute wealth for the purpose of equalization, it violates the “first principle of association”: the right to liberty, the right to the free exercise of one’s own mind and body. Jefferson wrote:
To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.The Founders’ second argument justifying unequal distribution of property is summarized by James Wilson: “The right of private property seems to be founded in the nature of men and of things…. Exclusive property multiplies the productions of the earth, and the means of subsistence. Who would cultivate the soil, and sow the grain, if he had no peculiar interests in the harvest?” An economic order in which some acquire more than others is the condition of greater prosperity for all. The Founders were aware that there will always be some who, through no fault of their own, are unable to provide for themselves. The families of children, the disabled, and the unemployed were expected to take care of them. If their families were unable or unwilling, churches, private charities, and other private associations would often step in; but if private institutions failed, government assumed the obligation to provide a “safety net” of last resort. That safety net, however, must not be so generous that it would entice people to prefer government benefits to gainful employment. The poorhouse, where people would be required to work to the extent of their ability in exchange for room and board, came to be the preferred solution, and the administration of the “poor laws,” as they were called, was to be done by local government so that the true circumstances of those claiming to be in need would be known.ConclusionGovernment today has strayed far from the Founders’ approach to economics. However, the older policies have not been altogether replaced. Some of the Founders’ complex set of policies to protect property rights are still in force. America has abandoned the Founders’ views on the gold and silver standard, the prohibition of monopolies, the presumption of freedom to use property as one likes, the freedom of contract, and restricting regulation to the protection of health, safety, and morals. But in other respects, America continues to offer a surprising degree of protection to property rights in the Founders’ sense of that term. —Thomas G. West is Professor of Politics at the University of Dallas; author of Vindicating the Founders: Race, Sex, Class and Justice in the Origins of America; and a Senior Fellow of the Claremont Institute.