Claremonsters And Associates Weigh In On Kelo
Property rights and wrongs (PowerLine blog)
In Vindicating the Founders, Claremont Institute Senior Fellow Thomas West sought to present a historically accurate picture of the founders' views and policies on issues of race, sex, class and justice. He did so because he found the founders' views to be superior in truth and fairness to the views of their historical predecessors and successors, foremost among them the Progressives.
Professor West first addressed the founders' view of property rights in a 1992 Claremont Institute briefing paper that was expanded and elaborated in the second chapter of his book on the founders. The following observations are based on Professor West's work.
In his 1992 paper, Professor West began by noting that the debate over the meaning of the takings clause of the Fifth Amendment misses the point -- the point being the political importance of the right to property. The right to property was central to our founding; it occupied a vital place in the system of free government the founders built. The right to property was an instrument to defend common people from the power of the establishment.
In our time the right to property is widely misunderstood, above all by liberals who do not share the vision of justice that animated our Constitution. This week the liberal assault on property rights reached one kind of culmination in the Supreme Court's Kelo decision.
For the past hundred years the attack on private property has been central to the Progressive assault on the Constitution, beginning with J. Allen Smith's The Spirit of American Government (1907) and continuing most importantly with Charles Beard's An Economic Interpretation of the Constitution (1913). Smith and Beard portrayed the constitutional protection of private property by the founders as the weapon of an elite interested in preserving its privilege. (By the time scholars got around to debunking Beard's book in particular -- few serious works of history have been as definitively disproved as Beard's -- the damage had been done.) Today the Progressive assault on property rights continues in the scholarship of liberals such as University of Chicago law professor Cass Sunstein.
The entire PowerLine post is worth reading, and of course anything by Professor West is good reading.
I would quibble with one assertion in the post, however. I think the attack on private property is a symptom of the Progressive critique of the Founders' constitutionalism, not a central tenet or principle. The real aim of the Progressives and their progeny has been to decouple the Constitution from the principles of natural right elaborated in the Declaration (which of course rejected Wilson's historicist notion of a "living constitution"). That's as much a philosophical as a legal project.
Several other posts by Claremont-oriented bloggers are available here, here, and here.
Posted by Kevin Whited @ 06/26/05 16:15 | American Politics | Technorati
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