The Public Side of Private Property

Anarchists aside, everyone favors state intervention in the economy. Debates over the government’s role are about how to intervene, not whether. The government secures property rights, and, as Robert Lee Hale said, “the right of property is much more extensive than the mere right to protection against forcible dispossession.”

In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned.

Hale, as Anthony Kammer clearly explained, was a leading light of a Progressive Era movement to “expose the hypocrisy of courts that would enforce property and contract law on behalf of employers while simultaneously insisting that wage or labor laws that benefited employees should be treated as unconstitutional governmental interference.”

Given the pervasiveness of property rights in the private sector, Hale concluded that treating progressive workplace laws as “state interference” while treating contract and property laws as part of the “free market” was disingenuous, contradictory, and, at bottom, politically motivated. So-called free markets depended heavily on the state and power delegated from the state. Hale maintained that because this idea of the “free market” had been exposed as contradictory and incoherent, the concept should not have been imported into our constitutional jurisprudence by the Lochner Court.

It is for this insight that Hale and the other legal realists can help inform our legal predicament with respect to the First Amendment today. Despite the fact that a different constitutional amendment was being invoked (the Fourteenth rather than the First), the legal realists have been through this fight against a libertarian, anti-regulatory amendment before.

Hale’s insights regarding the universality of coercion and the background level of government activity underlying seemingly individual liberties are as relevant now as they were in the 1930s. The legal realists’ recognition that all private power is often a kind of delegated state power reveals that the government often causes the very power imbalances that other regulations seek to correct. The point, of course, isn’t that government is bad for enabling private actors, but rather that it is therefore arbitrary for courts to invalidate progressive and egalitarian policies as interventionist while treating background property, contract, and corporate laws as natural.

(Kammer’s brief introduction to Hale was part of a shrewd post on how the government enables corporate “speech,” which is worth reading in full.)

Totalitarians aside, most of us believe there are things the government should not do. The debate is not whether government should be limited, but how those limits should be defined. The “libertarian” definition is just one of many. Accepted in its entirety and consistently applied, it would reject Alexander Hamilton as a tyrant and raise some economists from Austria to the standing of Founding Fathers. Granted, propertarians have the right to argue for their ideal constitutional order, but the rest of us have no duty to think in their question-begging terms.

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