- - Monday, July 13, 2020

The reckless and even malicious destruction of property that has been a prominent feature of the recent civil unrest deserves more attention than it has received from the legal community and educators, among other groups that shape public opinion. Violations of property rights are no less a threat to the American constitutional republic than violations of freedom of expression or religion.

From the looting and torching of businesses, to the desecration and destruction of monuments and statues, violations of property rights are increasingly treated as a form of expressive freedom. This is a dangerous sentiment. Expressive conduct that is untethered to sound constitutional and moral reasoning, such as the anarchic destruction of property, weakens the American republic for everyone.

To be clear, even the destruction of public statues is a violation of property rights since protesters, as a part of the whole body politic, can make no claim to owning or controlling what belongs to the entire body politic. This was the argument that Abraham Lincoln made when responding to the assertion by Southerners that a part of the people could secede from, and thus destroy, the Union that the whole people had created.

There is a good reason why the great U.S. Supreme Court Chief Justice John Marshall believed that property rights deserve special protection under the U.S. Constitution. Founders like Marshall understood that the protection of property is critical to human flourishing, which was the principal object of the American experiment in democratic-republican government.

Writing in Federalist Paper No. 10, James Madison, the person we call the “father” of the Constitution, argued that the principal object of government should be to protect people in the “exercise of their faculties.” Another way of saying this is that government should create conditions that give people an opportunity to “be all that they can be.”



One important way for the government to signal that it is serious about protecting people in the exercise of their faculties is to protect them in the enjoyment of the fruits of their labors. What better way to encourage LeBron James, Steve Jobs and Jennifer Lopez to “be all that they can be” than to ensure that they can enjoy what they create through their productive labors. Here is the difference between a country committed to human freedom and true human flourishing like the United States and a communist country like Stalinist Russia or Maoist China.

The protection of property rights incentivizes persons to exert themselves to the max, with corresponding material and emotional benefits for themselves and the larger community of which they are a part. Those benefits include a significant degree of personal independence that is good for freedom of expression and religion.

Persons whose property rights are insecure are more likely to be anxious or timid when it comes to speaking freely and openly on political issues or exhibiting their religious convictions in public places than persons whose property rights are formally protected against arbitrary governmental action or the actions of unruly factions.

A civic culture that does not recognize that property rights are no less deserving of protection in a nation committed to liberty and human flourishing than expression and privacy rights is unlikely to provide dependable support for human freedom in general. This fact should be accentuated in the civic instruction received by every school child in the United States.

Nurturing thoughtful and responsible citizens is the greatest of all challenges for democratic nations since the people are the sovereign body. Leading Founders such as James Madison, Thomas Jefferson, George Washington and Benjamin Franklin devoted considerable attention to civic education for good reason — they understood that a healthy civic culture was even more important to the integrity and viability of a decent and competent democratic-republic than well-devised governmental institutions.

Good civic education prepares citizens to think and act intelligently about the whole panoply of fundamental rights and liberties, including property rights, not just some of those liberties. This is a lesson from the Founding that we disregard at our extreme peril.

• David Marion is Elliott Emeritus Professor of Government and a Fellow of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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