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Recently I ran across a book I'd recommend to anyone:
Lincoln,
a new biography by David Herbert Donald.
What I like best about it is that it pays due attention to
Abraham Lincoln's career as a practicing, practical
politician.
Too often we see Lincoln as an American saint, too pure to do what politicians do: campaign for office, distribute patronage, build coalitions, thwart opponents, etc.
Yet Lincoln's days in the White House were largely occupied by these considerations.
I also found it rather refreshing to read of
congressional investigations of the First Lady (why didn't
William Safire, in his novel Freedom,
observe that
Mary Todd Lincoln was a congenital liar
), of corrupt
defense contractors, of conflicts between the
fire-breathing Radical Republicans and their more temperate
brethren.
Somehow the America survived all that, which is a comfort when you read the latest apocalyptic announcements.
Of particular interest here, though, was an argument
over property rights
that began Lincoln's career as
a national figure in 1858, the year that he and Stephen A.
Douglas held their famous debates throughout Illinois.
Their argument centered on whether Congress could forbid slavery in the land taken in 1846 from Mexico.
Lincoln argued that Congress did have that power,
despite the infamous Dred Scott ruling by the Supreme
Court. Douglas supported popular sovereignty,
and
further argued that even if a territory was obliged to
allow slavery, at least on a theoretical basis, the
territorial legislature could, on a practical basis, make
slavery impossible.
How? Douglas observed that the entire property basis of slavery was rooted in law and required supporting legislation -- laws to empower sheriffs to arrest fugitives, laws to guard against fraud in slave auctions, etc. Without that legal and social support, slavery could not exist.
This inspired me to ponder the social definition of
private property.
At that time, in some states, it was perfectly legal to traffic in human beings. In other states, this was forbidden. Both sides could point to the Bible and to the words of the Founding Fathers for support.
So there isn't any natural
basis for certain
property rights. The people of South Carolina had one idea,
and the people of Massachusetts had another. What was and
wasn't private property was defined by the state
legislature.
Go back even further to a state of nature.
Assume
that we are all foraging in little bands, the way humans
have operated for most of their time on earth, and what
could we truly own? What you could carry on your back and
what you could personally defend.
Anything more in the way of private property requires social organization and legal systems. I can own a house on a lot because the county maintains a registry of deeds with property definitions, and the sheriff will arrest someone who enters without my permission. Without that supporting framework, I really don't have property.
To look at this another way, George Washington could legally own slaves and hemp. You and I can't. If the right to private property is somehow absolute and does not depend on social conventions and legal constructions, then why don't we enjoy the same property rights as he did?
We have, in general, the same rights of free speech,
assembly, religious freedom and so forth that Washington
had. But we don't have the same property rights. The
concept of what is and isn't acceptable private
property
obviously changes over time.
Thus, even the most fervent property rights
advocates haven't argued for a return to slavery. Last
spring, I heard one speak at a conference, bitterly
denouncing government takings
in the form of
environmental restrictions, and I asked him how much he was
willing to pay me not to grow marijuana on my property.
He acted as though it was a joke, but it wasn't. He argued that he should be paid not to damage a wetlands on his property. Society had made a decision that wetlands were to be protected, and he believed that decision devalued his property and he should be compensated for his loss.
Similarly, society makes a decision that I should not
grow certain plants on my property, and it seems obvious
that I might suffer economic losses thereby. So where's my
compensation for this takings
?
Do I have a property right
to the splendid view
from my front porch? It probably adds value to the
property, so should you have to pay me if you own a nearby
parcel and erect a structure that diminishes my view? The
charming old structures in downtown Salida seem to enhance
values throughout town, so are you taking
from me if
you raze one and put up something modern?
Just what is and isn't a property right?
We
fought a big war over that once, and alas, it doesn't seem
to have to settled the matter.
But I do note that some people have more rights than others. Suppose John du Pont had been John Koresh or John Weaver. Would the authorities have been so patient and respectful?
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