To what end do individuals in societies form governments – or for what purpose do citizens expect their established government to fulfill? To answer this question and its impact upon several of the remaining amendments contained within our “Bill of Rights” that heretofore I have not commented on, let us turn to some statements made by John Locke, one of the most influential political and philosophical thinkers in Western history. Locke (1632 – 1704) exerted a great influence upon the founders of our republic, especially the Anti-Federalists, and his writings are readily apparent in the thoughts expressed by Thomas Jefferson in our own Declaration of Independence. In one of his most important works, The Second Treatise of Government, Locke has much to say about the purpose of government and why individuals form them. People unite together, he says in chapter 9, “Of the Ends of Political Society and Government”,
“…for the mutual preservation of their lives, liberties, and estates, which I call by the general name, property. The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property;….”
Yet, though man forfeits to a degree the rights he possesses in what Locke terms his state of nature, i.e., his God-given rights and freedoms into which he is born as an individual into the sea of humanity, by forming and submitting to a mutually agreeable government in order to achieve the preservation and protection that is otherwise not available in the state of nature, there are limits to the power of this government in fulfilling such an obligation. In his concluding section of this chapter Locke went on to say
“But though men when they enter into society give up the equality, liberty, and executive power they had in the state of nature into the hands of the society, to be so far disposed of by the legislative as the good of the society shall require;…the power of the society, or legislative constituted by them, can never be supposed to extend farther than the common good, but is obliged to secure every one’s property…and so whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees;…And all this to be directed to no other end but the peace, safety, and public good of the people.”
Locke again returned to this thought in chapter eleven, “Of the Extent of the Legislative Power”, of his treatise, to emphasize the point of the limitation that should be placed upon legislative bodies when it comes to the liberties and properties (as understood in his broader context) of the citizenry:
“…men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bond it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of nature….
It cannot be supposed that they should intend…to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it,…therefore, whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions. For then mankind will be in a far worse condition than in the state of nature.”
So having quoted extensively from Locke’s thoughts on this, what can we ascertain? We can learn that at the time of his writings and the influence it was to have on our founders when they composed our Constitution some ninety-seven years later, there was great concern over the rights of private ownership. This obviously was due to the nature of the monarchies that were prevalent in Europe at the time in which the king could take whatever he wished, which power was a major spark in the igniting of the American Revolution. Is it no wonder then that this concern received as much attention as it did in the Bill of Rights, namely portions of amendments four, five, and some years later in Section I of the fourteenth amendment.
The substantive elements we can glean from Locke’s quotes above are that first, the right of property (and not just land, but will be expanded upon in a moment), being a part of the “state of nature” would fall under what Jefferson would later categorize as an “inalienable” right endowed upon man by his Creator. Second, that man forms societies and governments (or as he also refers to them as “Commonwealths”) in order to better protect not only his property but also his liberty and his life, two more of Jefferson’s “inalienable” rights. Third, that although in forming such commonwealths man as an individual gives up some portion of his protective rights to the society so formed, it then is incumbent upon those selected to govern to guard that right as though they would do so as the individual would. And fourth, that such governance should be conducted based upon established laws, consented to by the people and not by the arbitrary whims of those in power to their own benefit, but solely to the betterment of all the people.
Locke continued in the same chapter to expound upon the fact that should government ever take the property of the citizens without their consent such action violated the precise reason for its existence.
“For all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty and be safe and secure within the limits of the law; and the rulers too kept within their due bounds, and not be tempted by the power they have in their hands to employ it to such purposes,….
…The supreme power cannot take from any man any part of his property without his own consent. For the preservation of property being the end of government, and that for which men enter into society,…Hence it is a mistake to think that the supreme or legislative power of any commonwealth can do what it will, and dispose of the estates of the subjects arbitrarily, or take any part of them at pleasure….the prince, or senate, however it may have power to make laws for the regulating of property between the subjects one amongst another yet can never have a power to take to themselves the whole or any part of the subjects’ property without their own consent.”
Locke does not by all this mean to imply that governments have no legitimate right to any portion of the property of the citizens, for he goes on to say
” ‘Tis true governments cannot be supported without great charge, and ’tis fit every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority, giving it either by themselves or their representatives chosen by them.”
This last principle will be one that I will show to be of importance as it relates to the current “health care reform” legislation being considered in our Congress. But for the current time, all of this should show that those who have been entrusted by us to govern and legislate laws in our behalf are bound to do so with the protection of our liberties and property in mind and that to exceed their bounds by appropriating more than is necessary or for reasons contrary to our good or expressed will has no support in principle or in what we shall now see in the Constitution.
The fourth amendment addresses our rights against what is commonly referred to as the “searches and seizures” clause.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,…”
The fifth amendment also addressed this matter and added more restrictions upon the government’s power to take that which belongs to the citizenry:
“No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
It should be apparent now just how much of an influence Locke’s treatise had upon Mason, Madison and the others as they composed these amendments, as much of the language and phraseology you will find in the quotes I have given in the earlier portion of this essay are here repeated in these amendments. It is in the fourth amendment that we get a glimpse of what is considered to be the rightful property of the citizenry, for within it entails all that pertains to the individual, which would also include our finances. Returning once again to Locke’s treatise, in chapter five “Of Property”, he has this to say in regards to what property consists of:
“…every man has a property in his own person; this nobody has any right to but himself. The labour of his body and the work of his hands we may say are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property….For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to,…The labour that was mine removing them out of that common state they were in, hath fixed my property in them….the condition of human life, which requires labour and materials to work on, necessarily introduces private possessions.”
Why, you may ask, have I quoted so extensively on this matter, and the answer is simple – to establish that anything that pertains to us that we may have, be it physical property and possessions as we normally think of the term, or intellectual property such as is protected by copyright and patents, or our money since it is the product of our labor, is to be understood as not accessible to other individuals or to the government without our express consent. Perhaps you can now see where this very much ties into the concept of taxation and what should be the proper method of supporting the government and which methods violate these principles and amendments.
Put together, these two amendments assert the following points:
- This is a right of the people, as described by Locke as a right of nature, one that Jefferson termed to be “inalienable”;
- That this “right” is to be secure, that is protected from and guaranteed not to be deprived of life, liberty and property;
- That such security may be violated only when there exists a reasonable basis for doing so and only in accordance with a due process of established laws;
- And that should a deprivation of property be necessary due to a need for the common good, it must be a reasonable cause and just compensation must be rendered to the one from whom the property is taken.
You will also note that the one amendment states these rights in the positive mode (the fourth) while the other (the fifth) expresses the similar sentiment in the negative. To be “secure in their persons” is tantamount to not being “deprived of life”; “to be secure in houses, papers, and effects” is the equivalent of not being “deprived of property”; and “against unreasonable” corresponds to the same notion of “without due process” and “without just compensation”. The argument is made that in the fourth amendment the right under consideration is a collective one, viz. it does not guarantee that an individual is secure in his person, house, etc. from unreasonable search and seizures. Yet if it cannot be individualized, then it makes no sense as people do not collectively possess a house and possessions other than as individuals. Furthermore, the language of the fifth amendment that is so similar clearly points to an individualistic interpretation.
I will grant that the thrust of these two amendments has to do with the authority of the government in respects to investigating and preventing of criminal activity (at least as it has been applied down throughout our history), but it is more than that – it is a curb on the power of the government to conduct such activities under any circumstance without just cause and, as Locke would say, for the betterment and protection of the society as a whole. However, consider once again how Locke defined “property” – that it was anything that an individual came to possess as a result of his labor. That being the understanding of “property” in the time of the framing of our Constitution then cannot it be further asserted that any method of taxation devised by the legislature that, as Locke put it, “extend farther than the common good“, and rather than to “secure every one’s property” diminishes one’s property by laws and regulations not fully known by the people, I ask – does this not then amount to nothing more than unreasonable seizure by the government of our property without our consent for purposes not necessarily for the good of society and in excess of what is actually required? Consider our complex and convoluted tax code – would you say that it meets that assertation by Locke that such laws regarding property (in this case money earned by labor) are “to secure and defend their properties, and may have standing rules to bond it, by which every one may know what is his.” Do all of the rulings and regulations of the IRS meet the standard set forth by Locke when he said “every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority, giving it either by themselves or their representatives chosen by them”?
Furthermore, consider if you will the myriad of agencies in the government that issue rules and regulations that deprive individuals of the very things these amendments were put in place to protect, and yet the Court has in recent years declared that the due process clause does not apply to these agencies!! Therefore the EPA can order that water in a fertile farming region of California can be shut off due to some two inch minnow fish’s existence being threatened, causing the loss of the livelihood of tens of thousands of our fellow Americans, and they have absolutely no recourse to such action! I would beg of you to explain how this can be anything but an unreasonable seizure of the property of these individuals and a deprivation of their life, liberty and property?!
Yet again I would suggest to you that the portion of the so-called “health care reform” legislation currently before our Congress, in its language that would impose fines and even possibly imprisonment for those who refuse to purchase the government-mandated insurance coverage is once more nothing other than an arbitrary capricious use of power to deprive individuals of their property in that the government would seize monies from those individuals, which again as Locke points out, falls under the broader definition of property in that it was gained by the labor of those from whom it would be seized.
There have been other instances in recent years where the private property of individuals was taken under the guise of “imminent domain”, which then was used for commercial purposes and not something that could be defined (without a great stretch of the principle) as something for the common good of society – a clear violation of the fifth amendment, but when appealed by individuals to the courts, fell on deaf ears.
I could continue with but one example after another of how those currently in power in Congress and the White House view our liberty and property not as rights to which only we have claim to, but as vehicles by which they can further their agenda of rendering us slaves to their power, deprived of liberty and wholly dependent upon them for sustenance. What other reason could President Obama have in mind when he speaks of the need to “spread the wealth” – the notion of “redistribution of wealth” is nothing more than a clear violation of our rights as delineated by Locke and a shredding of these two amendments. Our lives, liberties, and property are under the most severe assault that this nation has ever witnessed, and unless we rise up in opposition to those seeking to seize these from us with their unreasonable agendas we are doomed.
I leave you then with these words of warning of Thomas Paine in the opening pages of his work, Common Sense:
“Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer….WHEREFORE, security being the true design and end of government, it unanswerably follows, that whatever FORM thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.”
-Epaminondas
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