We Hold These Rights IV: What Is Our Property In Rights?

by Scott Huggins

Preface: In one week, I’ll be going to a conference on the Bill of Rights, sponsored by The Bill of Rights Institute, on Civil Liberty and the Constitution. As part of this conference, I have been asked to read a number of historical documents, written by the framers, their mentors, and those who lived, legislated, and worked within that Constitutional frame. This resonates deeply with me, as I have been struggling for some time now with concepts such as “rights,” “freedom,” and “justice.”  What follow are my thoughts.

In my last post, I discussed Madison’s view that people have rights to property, following the Lockean idea that property exists when a person claims a part of the common through his or her own labor. But Madison also refers to the “property” that we have in our rights. The implication of these intersecting ideas is that we, essentially, “own” our rights in the same way that we own our property. These would be Locke’s rights of life, liberty, and property, though not the franchise, necessarily. That was something that could be reserved for persons who owned other property, in Madison’s day. Now recall what Madison said of property; it is: “every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” Further, “a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them… He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.”

So far, so basic: I have the right to express myself to the extent that I do not make it impossible for you to express yourself. I have the right to practice my religion to the extent that I do not make it impossible for you to practice yours. And I have the right to a free use of my powers so long as I don’t stop you from using yours. But the implications for treating these rights as property are frankly staggering. Locke began his argument for the government as the judge of rights by framing the yielding of a man’s rights to the government as a kind of trade: In exchange for equal protection under the laws, I renounce my right to be the executor of the laws. In other words, rights, whatever their source, can be traded and bartered for other rights by contract, because they are property.

This is a thought that is thoroughly frightening, and I’m sure many of my readers will see it at once, but let’s spread it out verbally: People are commonly thought to have a right to set the price for their own property. Commonly, the price for property is other property. But if our rights are property and our property are rights, then we could also say that the price for our rights is other rights. If we think about it, we make this bargain daily, or at least, those of us who are employed for wages and salaries do: We trade our rights for the “free use of our faculties” for the money of our employer.

Lest anyone say that this analysis merely shows the moral bankruptcy of the very concept of “property” I must point out that substituting “rights” doesn’t take us very far. After all, if you refuse to speak of property, how will you determine who has the right to consume? Any body with the power to distribute the right to consume to one who cannot produce has by definition the power to deny the right to consume to one who can. And that is the very definition of slavery. Slavery does not, however, consist in the trading of rights for other rights: that, it is obvious, as we have seen.

Where we do get very close to slavery, however, is when our power to make trades becomes limited, as we observed in our last post, by those private or public powers who can use disparities of power to force a trade which can be of benefit only to their own side. When labor is so plentiful, and money so scarce, that 100% or more of a person’s capacity for labor must be exchanged to obtain the bare minimum of property s/he must consume to stay alive, we have effective slavery.

We have it in other areas, as well. We have in the Constitution rights to freedom of speech and of the press. But we have never interpreted that to mean that we have the right to use instruments of speech and press that are the property of others. If, however, the means of communication are such that 100% or more of a person’s capacity for labor must be exchanged to access (or create) these instruments, we have effective censorship.

Moreover, if we have the right to “the free use of (our) faculties and free choice of the objects on which to employ them,” that implies the right NOT to be communicated to, if communication is undesired by us. If the communication of others is inescapable, or nearly so, our right is violated. I find it curiously ironic, upon George Orwell’s recent birthday, that so much attention was paid to Orwell’s message on the right to self-expression, when the truly oppressive quality of Orwell’s dystopia was not so much that his hero could not speak, but that he could not escape the incessant, unfettered speech of the Oceanian State.

The only solution I see to this problem of our property in rights is by appealing to the most basic principles of contract, though that is problematic, too. After all, a person is held responsible, and thought responsible, for signing a bad contract, and is held to the terms of that contract, even if it spells financial ruin. But no contract is valid which confers no benefit to one of the parties. And if a person is in such a situation, where his or her rights must be traded away for no benefit, the conclusion must be that the contract cannot be a binding one. The dividing line between a bad contract and no contract is not always so easily seen, however.

The other corollary I see here is this: the Bill of Rights denies to the government many powers, especially powers that limit the freedoms of citizens. It seems to me impossible that the founders meant to make it impossible for the government to oppress its citizens, while at the same time guaranteeing the right of certain citizens to oppress their fellows. Since the Citizens United case, much has been made of the slogan that “money is not speech.” This has always struck me as naive in the extreme: of COURSE money is speech, and always has been. The purpose of the First Amendment is in part to make sure that my money is as good as yours for the purpose of buying the paper, ink, airwaves, bandwidth, etc. that goes into spreading speech. It was written to ensure the government could NOT consider opinions a type of currency that trumped money. But now we run into an inherent contradiction that I cannot as yet resolve: when YOUR opinion is worth more to you than MY money, and you are willing to ignore my money to propagate your opinion (especially if YOU control the medium in question), then has the government not granted to you the power from which it has recused itself: to silence, effectively, my point of view?

I’d love tto hear some opinions here.