Property-phobia

The Clarence Thomas confirmation hearings were both idiotic and mealymouthed. Typical was Joe Biden (D.-Del.) gesticulating with a copy of Richard Epstein's book Takings, and demanding to know if Thomas agreed with the evil tome.

Epstein leads "a fervent area of scholarship," said Biden, "that basically says, 'Hey, look, we, the modern-day court have not taken enough time to protect people's property, the property rights of corporations, the property rights of individuals, the property rights of businesses.'"

Every American – with 45 % of his income taken by governments and with his economic life regulated to a Mussolinian extent – knows just how absurd that view is.

Epstein thinks the Fifth Amendment means what it says: that "private property" shall not "be taken for public use without just compensation." This dangerous idea, says Biden, would undermine government's ability "to have zoning laws.... pollution laws.... laws protecting the public welfare."

"Private property once may have been conceived as a barrier to government power," writes Epstein, "but today that barrier is easily overcome, almost for the asking." Nevertheless, the "public use" criterion ought to stop "the entire array of government transfer payments in its tracks."

If Congress does identify a genuine police-power or public-use justification for a taking, says Epstein, compensation must be provided. That proviso makes much of government self-defeating. For every dollar in property taken, a dollar must be paid in compensation.

Applied as written, the Fifth Amendment would level Leviathan. Epstein mentions welfare, social security, unemployment benefits, and anti-trust laws. It would also apply to inflation (a hidden tax), environmental policy (a war on economic progress), and civil rights (a war on private decision-making).

The rights we hear championed in Washington: to welfare, to a job, to loiter, to immigrate, to health care – are pernicious nonsense because they trample on the will of property owners.

Private property is the real human right, and the foundation of all freedom. If a church can't own its building, there can be no freedom of religion. If a newspaper can't own its press or newsprint, there can be no freedom of the press. If there is no private land, there can be no freedom of speech.

Liberals like Biden do a rhetorical snake dance to avoid admitting that the lack of property rights doomed communism. They refuse to face the fact that the welfare state must fad for similar reasons.

Without property rights, there can be no economic calculation. The result must be chaos. Yet, in the capital of the land of the free no one is supposed to mention property, especially if he's nominated for the Supreme Court.

The issue of private property used to divide the world along the Berlin Wall. But no more. Citizens of the ex-USSR want private property. Eastern Europeans struggle to undo the damage of collectivized property.

All of these peoples look to America for guidance. Instead of hailing private property, Biden and friends treat it like a balanced budget – not to be mentioned in polite company.

Yet private property gives us the incentive to work and save for our families. It makes market prices possible, so we can tell the difference between profit and loss. It makes contracts possible, so that we don't battle our neighbors over who owns what. It is the foundation of peaceful human relations.

As Aristotle said, "the abolition of private property will mean that no man will be seen to be liberal and no man will ever do any act of liberality; for it is in the use of articles of property that liberality is practiced."

To John Locke, in the just society "the supreme power cannot take away from any man any part of his property without his own consent." Our Founding Fathers agreed, with James Madison calling the protection of private property "the first object of government."

Yet Thomas repudiated the liberals' suspicion that he might agree with the Founding Fathers. Instead he moaned about a childhood outhouse and an insult to his grandfather. Worse, he acted as if such sob stories qualified him for the Supreme Court.

Genuine sob story: they do, for the idea of merit is hated on Capitol Hill. Having a first-class mind is a disqualification, as Robert Bork discovered.

Instead of defending property, Thomas hailed "equality" as the "central tenet" of America.

That unfortunate principle fueled the French and Bolshevik revolutions, but not the American. As Jefferson, Madison, and Hamilton made dear, inequality is central to our free society.

In an American Right now largely run by Truman-Humphrey Democrats posing as conservatives, only one man pointed out the non-existence of the judicial emperor's robes. Writing presciently last summer for the October Chronicles, Dr. Samuel Francis showed that when equality is the guiding principle, as it is to Thomas, the result must be interest-group serfdom.

It matters little that Thomas once claimed not to believe in group rights. He believes in a sort of individual rights – the right to compel economic transactions, for example – that is incompatible with private property.

Meanwhile, the administration's commitment to equality is shown not only in the Thomas appointment, but in the Civil Rights Act of 1991, which would further welfarize business payrolls, and the Americans With Disabilities Act, which forces businesses to hire and cosset the literally crazy. Are we all to become one big Senate?