The Constitution Does Not Protect Our Property

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The U.S. Constitution
is widely believed to have been written to limit the powers of the
federal government and protect the rights of its citizens. Inexplicably,
this belief is held even by those who acknowledge that the constitutional
convention was called for the express purpose of expanding the powers
of the federal government, supposedly because the government under
the Articles of Confederation was too weak. That this was the purpose
of the convention is not a disputed fact. Nevertheless, most people
who care at all about the Constitution continue to believe and promote
the “Constitution as protector of rights” myth.

To the extent
that the Constitution enumerates certain powers for the federal
government, with all other powers assumed to be excluded, it does
set some limits on government. When one includes the first
ten amendments of the Constitution, it also protects certain rights.
Indeed, the ninth amendment makes the very important point that
the specific protections of certain rights does not in any way deny
the existence of others, while the tenth amendment makes explicit
the implied limitation to enumerated powers in the Constitution
itself. At first glance, the so-called “Bill of Rights”
seems to confine government power within an airtight bottle, rendering
it incapable of becoming a violator of rights instead of protector
of them.

However, this
theory does not hold up well under closer examination. To begin
with, the Constitution itself does not protect a single right other
than habeas corpus, and that comes with a built-in exception. What
the Constitution does do is grant powers, and not just to a representative
body, as the Articles of Confederation did, but to three separate
branches. That leaves it up to the Bill of Rights to serve the purpose
of protecting our rights. Generally, those ten amendments protect
our rights under extraordinary circumstances, but not under ordinary
circumstances. More specifically, the Bill of Rights provides protections
for the individual during situations of direct conflict with the
federal government, such as when one is accused or convicted of
a crime, when one is sued, on the occasion of troops being stationed
in residential areas, or when one speaks out against the government
or petitions it for redress of grievances.

Make no mistake,
these protections are vital and have provided protections for the
people against government abuse of power many times in U.S. history.
However, they have proven ineffective against the slow, deliberate
growth of government power under ordinary circumstances, when the
specific conditions described in those amendments do not exist.
This is primarily due to the absence of protection, either in the
Constitution or in any subsequent amendment, of the most important
right of all: property.

By “property,”
I do not mean exclusively or even primarily land ownership, although
land ownership is one form of property. By “property,”
I mean all that an individual rightfully owns, including his mind,
body, labor, and the fruits of his labor. It is specifically the
right to the fruits of one’s labor that the Constitution fails
entirely to protect. In fact, it makes no attempt to do so whatsoever.

In the Constitution
itself, the word “property” appears only once, and that
is in reference to property owned by the federal government (an
inauspicious start). Nowhere does it make any mention of property
owned by the citizens.

The document
does grant the federal government the power to tax “to pay
the Debts and provide for the common defense and the general welfare
of the United States.” This is a strikingly unlimited scope
for which the federal government may tax its citizens. Arguments
that taxes may only be collected to underwrite the subsequently
enumerated powers have been struck down. Sadly, those decisions
have probably been correct. While the power of the Congress to pass
laws is explicitly limited to those “necessary and proper for
carrying into Execution the foregoing Powers,” no such language
binds the power to tax. The fact that the explicit limitation exists
for lawmaking (which Congress ignores anyway) but not for taxation
lends further weight to the argument that the Constitution grants
Congress unlimited power to tax its citizens.

One can certainly
make the argument that in 1789, the term “general welfare”
would have been interpreted much differently than it is today. Indeed,
one might assume that the term “general welfare” meant
the general protection of each individual’s rights. Perhaps
that is what many of the founders believed at the convention. However,
it is clear that Alexander Hamilton and his Federalists, the driving
force behind calling the convention, had far different ideas about
what the term “general welfare” meant. Remember that for
Hamilton, the purpose of government was not the protection of rights,
but the realization of “national greatness.” This could
only be achieved at the expense of individual rights, primarily
property rights.

So, the Constitution
itself grants Congress unlimited power to tax and does not even
mention, much less protect, the individual right to keep the fruits
of one’s labor. Certainly the Bill of Rights addresses this
deficiency, doesn’t it?

It does not.
Like the Constitution itself, the Bill of Rights is virtually silent
on the central right of property. Out of all ten amendments, the
word “property” appears in only one of them:

“No person
shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property
be taken for public use, without just compensation.”

Unlike the
congressional power to tax granted in the Constitution, the constitutional
protections codified in the Fifth Amendment are severely limited
to specific, extraordinary circumstances. The entire Fifth Amendment
is set in the context of criminal law, granting certain protections
to the accused and/or convicted. The phrase “due process of
law” is a specific legal term that refers to those accused
of a crime being given notice of the charges, opportunity to face
their accusers, call witnesses in their defense, etc. This was obviously
the intent of this protection of property, rather than a general
protection of property rights against taxation.

Even if one discards
the clear intention of this clause of the Fifth Amendment and interprets
“due process of law” more broadly, the amendment offers
no more protection of property than if one interprets the clause narrowly.
Since the power to tax is an enumerated power, Congress would be following
due process of law simply by levying the tax in the first place.

The last clause
of the Fifth Amendment, regarding property taken “for public
use,” is similarly limited to extraordinary circumstances.
This clause undoubtedly refers to eminent domain, which is a grievous
abuse of property rights, but certainly not one that affects a large
percentage of the population. Even here, no right is protected.
The clause merely requires the government to give the victim “just
compensation.” There is no mention of the primary component
of the right of property, consent.

there is no mention of how “just compensation” is to be
determined, although history has shown that the government itself
determines what compensation is just arbitrarily. In a free society,
the value of property is determined by the price at which the owner
is willing to exchange it. However, since there is no requirement
here of the owner’s consent, no such price determination can

As for the
remaining protections of property in the Constitution and Bill of
Rights, there are none. These two phrases, protecting property under
only the most extraordinary circumstances are the length and breadth
of the Constitution’s involvement with this most fundamental
right. It is this deficiency that has allowed the federal government
to grow into the monster that it is, concerned with virtually nothing
but the redistribution of wealth.

If you believe
the official myth about the Constitution, this might seem shocking.
After all, the document was drafted by the same people that had
seceded from their nation and fought a long and bloody war primarily
to defend their right to keep the fruits of their labor. How could
they draft a document to recreate their government, which they said
only existed to secure their rights, and not only fail to secure
the most important right, but actually empower their government
to violate it with impunity? Certainly this was history’s most
colossal error.

However, when
you consider the political platform of the Federalists, which included
corporate welfare, monetary inflation, deficit spending, government
debt, and militarism, all designed to maintain the wealth and power
of a privileged elite at the expense of the rest of the citizenry,
the unlimited power to tax and lack of protection of property seem
less like error and more like deliberate intention.

Whenever the
subject of “constitutional rights” (a problematic term
itself) comes up, people reflexively refer to the right of free
speech. This is an important right, and one defended across the
political spectrum. However, free speech, freedom of the press,
and the other rights protected by the Bill of Rights, without property
rights, are inconsequential – the mere window dressing of liberty.
It is property that enables one to determine the course of one’s
own life. Without it, the right to life is no right at all, but
rather a privilege granted by those who own your labor.

George W. Bush
was an enthusiastic supporter of the right of “free speech.”
During a town hall meeting, an average American who opposed Bush’s
policies rose and began hurling insults at the president, eliciting
boos from the Bush-friendly audience. Bush reprimanded the crowd,
reminding them that this man had a right to speak his mind, even
if they did not like what he had to say. It was not the only time
that he stood up for free speech. This was no accident. A government
that has the unlimited power to seize the property of its citizens
can afford to be magnanimous when it comes to free speech. Yet,
for the citizen who no longer owns the fruits of his own labor,
the right to complain makes him no less a slave.

from Tom Mullen’s blog.

6, 2010

Mullen [send him mail]
is a writer, musician, and business consultant. In January 2009,
he published his first book, A
Return to Common Sense: Reawakening Liberty in the Inhabitants of
. Visit his website
and his blog.

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