We’ve all heard about life, liberty, and the pursuit of happiness, those inalienable rights described in the Declaration of Independence. Sometimes those basic rights are expressed as life, liberty, and property. Is any one of those rights more important than the others? Kyle Scott, who teaches political theory and constitutional law at the University of Houston, addressed that question during an interview with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: I understand that one of the key things that you’re working on is addressing this issue of life, liberty, and property and saying that we can’t look at one or the other of them as a distinct right — that they all have to be considered together. Why is that?
Scott: The reason is because when we discuss property — now, I like to consider them all along the same plane. In some sense, we might consider property to be the first among equals because those others are derivative or the physical manifestation of property.
If we understand property to be something that originates within us, which is then my liberty, my ability to use my liberty and my freedom to exert influence on the outside world then becomes my property. My property over myself. And those things that I myself mix property with become mine as well. And so if we abandon liberty or life, then we sacrifice property or we ignore the internal components of property. But if we ignore property, then life and liberty have no outward expression.
Kokai: Why is this so important? Some people may say, “Well, that sounds interesting, but what does it really mean for all of us?” Why is it important to focus on property as you mentioned it — a first among equals?
Scott: Sure. The reason why property, in this sense, [is a first among equals] is because it’s given such a special status within the U.S. Constitution — being specifically named in the Fifth Amendment. More importantly, once a government or anything begins to infringe upon your property, the rest of your rights become suspect or at least susceptible to the same sort of infringement.
And why it’s important now mostly to focus on property is because of a stream of Supreme Court opinions that have come out — and now even being considered from the state of Florida — of what are the legal limits that are set around property acquisition. And if we consider that this is something the government can do to our property, something clearly stipulated as being protected in the Constitution, then just imagine what it can do to everything else.
Kokai: Do you get the sense that people understand the importance of protecting the right to their own lives and their liberty, but perhaps give short shrift to protecting property rights?
Scott: Sure. And this isn’t necessarily the fault of anyone, except that we’re no longer wholly dependent on the land for our sustenance or for our wealth. We’re no longer necessarily landed wealth. And for the same reason that we don’t consider cattle rustling or horse thievery as important as what people may have originally, we may then be distracted from property.
But let’s not forget that property has many different manifestations and variations. Intellectual property is as important now as it ever was before, and if we ignore the importance of physical property, then we won’t be able to protect our ideas and expressions through patents or those sorts of things because those will become equally liable to infringement from other areas.
Kokai: In making a presentation in Raleigh, you spoke on the theme that was described as “reuniting life, liberty, and property using Kelo to expose the consequences of politicizing rights.” So let’s take a look at that Kelo v. City of New London case. For those who don’t remember, this is the big eminent domain case that the Supreme Court decided a few years ago that raised such a furor. Why is this an important case for us to focus on?
Scott: Besides the fact that a private entity was deputized with the powers of eminent domain, which opens up a whole host of constitutional questions, the fact is that I found interesting it was a 5-4 decision. Which means there are five Supreme Court justices who don’t think property is paramount and ought to be protected. But these same five justices think that other rights are just as important — or more important than — property: due process rights, various civil liberties, and those sorts of things.
On the flip side, the four justices in the dissent tend to think less of civil liberties at times and are willing to sacrifice those for other ends. Now my question that arises: Well, is this just a phenomenon at the Supreme Court level, or does it exist at the state level as well? What I find is that people are willing to sacrifice some rights for what I like to call their pet rights. People trumpet some ideas more than others and, therefore, rather than seeing a connectedness between all of them, they’re willing to sort of ignore others and just embrace their own.
So the mission here is to get people to embrace that property is linked to every other right, just as every other right is linked to property. And once we can recognize that, we can depoliticize rights, take them off the bargaining table, and let politics deal with policy and not our fundamental rights.
Kokai: If we do interlink these rights and consider them all of one piece, how will that change our political discourse?
Scott: … The reason why we have due process rights, for instance, is to protect our property. And why we protect our property is because our due process rights allow us this sort of freedom and that sort of thing, it allows us to manifest what property will allow us to, in accord with our constitution and due process rights.
Then we can bridge the gap between liberals and conservatives because they’ll say a conservative who is willing to sacrifice certain civil liberties for whatever ends that may entail will then be able to relate to a liberal who is willing to sacrifice economic liberties for whatever ends those may entail and see that they’re both coming from the same place and therefore get on board and say, listen, rights isn’t where we need to be disagreeing.
We can disagree over certain other policies — what needs to be taught in school, these sorts of things — but what’s held in common needs to be the Bill of Rights. Once we can start with a unified point of departure, our policy debates can become much more civil, much more productive, and all aimed at the same ends.
Kokai: It sounds as if [you’re saying if] people can bridge this divide, you’d get to maybe a more small “l” libertarian perspective, focusing on these various liberties and trying to get the government out of them, whether they be social or economic.
Scott: Sure. And the idea is not that — government has a place in this because at times the societal structure will break down, and government is going to need to step in and help us out and protect these things. But if we understand that there is a shared common theme that we’re all striving for, which is government is designed to protect these, not sort of set them up in a political competing fashion as they’re wont to do, then we do sort of get that small “l” libertarian where, OK, we have a common theme, and once we’ve established that, we can move on with our other disputes. I think it’s more of a consensus-making mechanism than anything else.
Kokai: It would be hard to get to the full range of the topic that you discussed in your recent presentation in Raleigh just in the course of this interview, but folks can learn more by reading a recent book that you’ve published. Tell us a little bit about your book and how it goes into these themes.
Scott: Sure. The title of the book is The Price of Politics, and what I seek to establish there is this “unity of rights” thesis. But in addition to the “unity of rights” thesis, I track the origin of the U.S. Constitution back to its common-law and its Magna Carta origins, therefore giving a rich, historical perspective on the Constitution and Supreme Court decisions and building a normative dimension into that through John Locke’s discussion of property rights.
Because we have to be open to the possibility that those things given to us in the Constitution or in Supreme Court decisions are erroneous or in error — even the Constitution — because while it’s supported by what Madison says or Magna Carta, we need sort of a normative moral dimension justifying it on grounds independent of history. And that I think we get from John Locke. That’s then developed so a sound critique of Kelo can be given.
Then at the end of the book I discuss the political implications of what happens when we abandon this unity of politics. And what generally happens, and where the book derives its name, is that rights and all policy go to the highest bidder at the state level specifically.