Canadian property rights advocates often wish their favoured rights could be entrenched in the Constitution. I want to suggest that this may be a misplaced desire, not because property rights are unimpor- tant"far from it!"but because of the risks involved in giv- ing them over into the care and keeping of judges. We may be guided here by the founders of liberalism, who believed that property rights, despite their central importance, were not absolute, and who therefore did not recommend con- stitutional entrenchment.
The founders of property rights certainly saw them as a necessary response to the human psychic constitution. In a 1984 article, Clifford Orwin and Thomas Pangle summa- rized the founders’ view of the relevant differences between humans and other animals. First, human beings are the only animals that can foresee their own deaths. Other ani- mals react instinctively and fearfully to life-threatening sit- uations, but only humans live with a constant anxiety about their mortality. This leads to the powerful human desire to delay death and minimize suffering"what John Locke labeled the desire for ”œcomfortable self-preservation,” or Montesquieu called ”œthat tranquillity of mind which aris- es from an individual’s opinion of his security.”
In order to achieve this ”œtranquillity of mind”"or, at least, as much of it as is possible for a being that can anticipate its own demise"people need the order and stability afforded by political authority, and will thus consent to gov- ernment. Hobbes’s war of each against all, or what Locke more subtly called the ”œinconveniences” of the state of nature, have to be overcome through the establishment of a known and settled authority.
But not any kind of government will do. Locke’s ”œcom- fortable self-preservation” or Montesquieu’s ”œtranquillity of mind” are secured not only by criminal law and police forces, but also by the fruits of productive labour. It is, after all, not just bare self-preservation but comfortable self-preser- vation that best eases the characteristic human angst, and individuals cannot achieve comfortable self-preservation without the freedom to accumulate property. ”œThe great and chief end, therefore, of men’s uniting into common- wealths and putting themselves under government,” said Locke, ”œis the preservation of their property.” Or, as James Madison put it in Federalist 10, ”œthe protection of different and unequal faculties of acquiring property” is ”œthe first object of government.” Property rights, in short, lie at the core of the liberal democratic tradition, and provide the standard for assessing the legitimacy of government. Only in a regime dedicated to property rights is it possible to approximate ”œthat tranquillity of mind which arises from an individual’s opinion of his security.”
A second defining characteristic of humans is that foreknowledge of death leads to a distinc- tively human approach to propagation. ”œAll other creatures,” observe Orwin and Pangle, ”œhave as their strongest desire the urge to propa- gate and continue their several species; but only human individuals can strive to continue their own selves in their offspring and come to love their offspring as an extension of themselves.” Thus families, in their great variety, are a natural response to the human condition. This natural attachment to family, and especially to offspring, gives further significance to the accumulation of property. Humans seek comfortable self-preserva- tion not only for themselves, but also for the off- spring that provide a kind of immortality. This means that Montesquieu’s ”œtranquillity of mind” is best secured when property rights are seen in part as ”œfamily rights” involving security of bequest and inheritance.
The human psyche provides a third justifica- tion of property rights. Although the desire for comfortable self-preservation for oneself and one’s offspring is powerful and durable, it is far from the only passion that motivates human behaviour. Pride and ambition, the lust for power, recognition and precedence"these are all-too-human features of our existence. And they are dangerous features"dangerous because they fuel faction and civil strife, thus jeopardiz- ing comfortable self-preservation. The advantage of a commercial regime based on property rights is that it provides comparatively safe outlets for natural human competitiveness or factionalism. People who have been softened by the pursuit and achievement of ”œcomfortable self-preserva- tion” are less likely to want to risk their lives par- ticipating in, say, religious crusades. And at least some of those who are inclined to engage in the bellicose building of religious or ideological empires might be diverted from such activity into empire-building of an economic sort"i.e., from empire-building that threatens comfortable self- preservation to empire-building that fosters it.
As important as property rights are, they are easily misunderstood. It is not always appre- ciated, for example, that property rights are more rights of acquisition than of possession or con- sumption. It is the protection of ”œdifferent and unequal faculties of acquiring property” that is Madison’s ”œfirst object of government.” The point is to fuel the acquisitive engine at the heart of a capitalist system, so as to generate surplus wealth and reinvestment, thus enlarging the economic pie to the benefit of both rich and poor. A day labourer in 17th-century commercial England, said Locke, was better off than the king of a ”œlarge and fruitful” but undeveloped American territory.
Acquisition and possession cannot, of course, be entirely separated. If possession is inse- cure, one of the most powerful incentives for acquisition is removed. Nevertheless, the posses- sion of property, important as it is, has never been considered an absolute right in the liberal tradition. Locke, for example, was clear that peo- ple ”œenter into society with others [not only for the] securing [but also for the] regulating of prop- erty.” ”œIn governments,” he added, ”œthe laws reg- ulate the right of property, and the possession of land is determined by positive constitutions.” Or as Montesquieu put it, ”œThere is nothing which is more in need of being guided by wisdom and prudence than the question of how much should be taken away and how much should be left in the hands of subjects.”
However, although Locke and Montesquieu clearly thought that expropriation in the name of the public good was sometimes justified, they established a strong presumption against it. In Montesquieu’s words, ”œthe public good demands that one never deprive an individual of his goods, or rather that one take away from him the least possible.” In other words, expropriation only when clearly necessary, and then as little expropri- ation as possible. In addition, when expropriation does occur, it must be rooted in law and due process, not arbitrary discretion, and it must be justly compensated. This carefully qualified power of expropriation is nicely expressed in the 1789 Declaration of the Rights of Man and Citizen: ”œProperty being an inviolable and sacred right, no one may be deprived of it, except when the public necessity, legally established, evidently demands it, and under the condition of a just and prior indemnification.”
Throughout his career, Prime Minister Pierre Trudeau similarly advocated the right not to be deprived of property except ”œby due process,” or ”œaccording to law,” or ”œin accordance with the law and for reasonable compensation.” Later, the Reform Party advocated ”œthe right of every per- son to the use and enjoyment of property, both real and personal, and the right not to be deprived thereof except by due process of law.” The Party added that no one should ”œbe deprived, directly or indirectly, by any law of Parliament or a provincial Legislature, of the use and enjoyment of property, unless that law pro- vides for just and timely compensation.”
Although modern property rights advocates maintain the substantive components of property rights"expropriation only with legal due process and with just compensation"they tend to be much more enthusiastic about constitutional entrenchment than were the founders of liberal- ism. Had Locke, Montesquieu or Blackstone rec- ommended a judicially enforceable bill of rights, property rights would certainly have been at the centre of such a bill, but they did not promote this way of protecting rights. As we have just seen, The Declaration of the Rights of Man and Citizen certainly gave a central place to property rights, but the Declaration was a statement of guiding principles, not a judicially enforceable legal document.
Of course, one might explain the failure of lib- eralism’s earliest exponents to promote entrenched (and judicialized) rights as simply an oversight on their part. Perhaps they would have considered the judicial enforcement of entrenched rights, includ- ing property rights, to be a good idea, a perfection of their own principles, had they only thought of it. This brings us to James Madison, a good Lockean on the question of property rights, and a leading author of what has become the world’s model for entrenched and judicially enforceable constitution- alism: the American Constitution, and especially its Bill of Rights. Madison not only considered but implemented the strategy of constitutional entrenchment. But even he remained doubtful about the value of this strategy.
Madison’s hesitancy about entrenched rights emerges most clearly in his thinking about the Bill of Rights. Remember that the Bill of Rights was an addition to the Constitution. The original Constitution did not contain such a bill, and Madison joined Alexander Hamilton in arguing, in the Federalist Papers, that it would be either unnecessary or ineffective. The two men agreed that rights were best protected by the proper arrangement of representative institutions, in the context of a large commercial society, not by the ”œparchment barriers” of a bill of rights. In Federalist 84, Hamilton argued that the original constitution was ”œitself, in every rational sense, and to every useful purpose, a bill of rights.” Now, that original constitution did specify a few rights, including some property rights. Thus, Article 1, which specifies legislative powers, states in sec- tion 10 that no state shall pass any ”œlaw impairing the obligation of contracts.” Nevertheless, it is not the judicial enforcement of this kind of provision that Hamilton had primarily in mind when he spoke of the Constitution as itself a bill of rights. It was the system of institutional checks and balances between and among the institutions of rep- resentative government, famously described by Madison in Federalist 51, that would best protect rights, at least in the context of the large com- mercial society, with its multiplicity of factions, promoted by Madison in Federalist 10. If ”œambi- tion [were] made to counteract ambition”"both among the branches of a single governmental jurisdiction and between levels of government in a federal system"truly serious infringements of rights would not occur and an explicit bill of rights would be unnecessary; and if institutional checks and balances somehow failed to prevent real tyranny, the ”œparchment barriers” of a bill of rights would be ineffective.
Someone is bound to object that Madison must have changed his mind about the value of entrenched rights because, after all, it was he who piloted the Bill of Rights through the first Congress. It is true that Madison was the father of the Bill of Rights, but as the political scientist Robert Goldwin has shown, in an analysis much too involved to replicate here, Madison took charge of what had become a politically inevitable movement in order to water it down and prevent it from going too far. The Bill of Rights that emerged under Madison’s guidance was much weaker than its chief advocates wanted, though it did serve to separate the leaders of the bill-of- rights movement from their followers, attaching the latter to the Constitution, and thereby strengthening national unity. Madison’s amend- ments, says Goldwin, ”œleft unchanged his convic- tion that the greatest security for rights resides in the structure of the society and the government.”
Even if Goldwin is wrong"even, that is, if Madison did change his mind about a bill of rights"there would be still be two contrasting strains in his thought over time, one of which is highly skeptical of the value of entrenching rights. That is sufficient for my present purposes because I want to argue that whatever Madison’s ultimate position may have been, his initial anti- entrenchment inclination is what modern prop- erty rights advocates need to remember.
The problem with entrenchment is that it places too much trust in judges, and judges, as any good Madisonian should agree, are no more trustworthy than anyone else who exercis- es political power. Judges have always exercised political power, of course"the common distinc- tion between interpreting and making the law is facile"but entrenched constitutional law sub- stantially extends the reach of their power.
In the early part of this century, American judges exercised their power to radically trans- form the 14th Amendment’s guarantee against the deprivation of ”œlife, liberty, or property, with- out due process of law.” Although the phrase ”œdue process” is self-evidently a procedural guar- antee"thus permitting the taking of life, liberty, or property with due process"the U.S. Supreme Court read the provision as though it contained the oxymoronic phrase ”œsubstantive due process.” This allowed the Court to strike down much of the emerging welfare-state legislation, such as maximum-hour and minimum-wage laws, despite the fact that they in no way infringed ”œprocedural due process.” Many advo- cates of economic freedom and property rights cheered these decisions, but they should, in fact, have worried about them. A Court that can turn ”œdue process” into ”œsubstantive due process” is a dangerous beast, dangerous precisely because it is unpredictable. Thus, while the U.S. Supreme Court opposed economic regulation in the name of property rights for a time, it eventually reversed course completely, allowing virtually any kind of economic regulation, and turning its ”œsubstantive due process” doctrine to the quite different purpose of protecting such social ”œpri- vacy rights” as the right to an abortion.
In a similar vein, we really cannot be certain what Canadian judges might do with a constitu- tional property rights protection. Some indication of the potential pitfalls can be gleaned from the debate about the Charter’s section 7 guarantee against the deprivation of ”œsecurity of the person … except in accordance with the principles of funda- mental justice.” As noted above, property rights were originally conceived as the basis of Locke’s ”œcomfortable self-preservation” or of the ”œtranquil- lity of mind” that Montesquieu said arose ”œfrom an individual’s opinion of his security.” A constitu- tional protection of ”œsecurity” might thus be understood to entail a protection of property rights. Precisely this interpretation of section 7 has, in fact, been suggested. On the other hand, it has also been suggested that the guarantee of ”œsecurity of the person” is more properly understood to entrench rights to welfare policies and to prevent the state from dismantling them. Indeed, welfare policies have been described as ”œnew” property interests that could be protected not only by sec- tion 7 but even by a more explicit property rights guarantee. I doubt that this is what the proponents of a property rights guarantee have in mind. Nevertheless, judicial power being what it is, it is what they might get. And, although judicial decisions can be reversed"primarily through what Peter Russell has called court-bashing and court- stacking"it isn’t easy. Legislative policies, of course, are also difficult to change, but it must be noted that after losing many battles in the political realm, proponents of property rights broadly con- ceived are winning some, and that it is their oppo- nents who advocate a retreat to the courtroom. For example, the courts have been urged to resist poli- cies that cut back welfare-state benefits, reduce their universality, or, as in the case of ”œworkfare,” impose conditions on the receipt of benefits.
The contemporary opponents of property rights are not Marx’s proletariat but the so-called ”œknowledge class.” As Christopher Lasch has argued, it is the knowledge class that today views human nature as the malleable product of social conditioning, and thus as subject to social engi- neering. For those who take this view, property rights are not a realistic outlet for certain other- wise dangerous facets of a permanent human nature (such as selfishness and ambition), but are themselves the social causes of undesirable human traits. Since the undesirable traits are socially caused, they can be socially overcome. And the chief way to overcome them is to replace private property rights with public regulation.
Now, the influence of the knowledge class has been felt in all policy-making institutions, includ- ing our legislative and executive institutions. Legislatures can certainly get caught up in projects of social engineering, and judges can be conserva- tive"history displays examples of both. But no one should be surprised to find democratic insti- tutions nowadays rebuffing the transformative projects of the knowledge class and to see the lat- ter seeking a more welcoming reception in the courtroom. If that is our current situation, it is not a particularly propitious one in which to give judges the primary responsibility for property rights by entrenching them in the Constitution.
If one could achieve the degree of legislative support necessary to entrench property rights" i.e., the support of the federal Parliament and the legislatures of seven provinces with 50 per cent of the population"why squander that support on an amendment that would give property rights over into the care and keeping of judges, who will for some time to come reflect the anti-prop- erty rights animus of their ”œknowledge class” education? Why not pursue substantive legisla- tive change instead?