In Part One of this review of James W. Ely, Jr.’s book, The Guardian of Every Other Right, I began:
At the end of Ayn Rand’s prophetic 1957 novel, Atlas Shrugged, a judge who is on strike with other producers against a future, nightmarish state of America (echoes of Obama) and has disappeared with them into a Rocky Mountain sanctuary, is at work. Before him is a “copy of an ancient document [the Constitution]. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: ‘Congress shall make no law abridging the freedom of production and trade…'”
At the end of Part One, I concluded:
…[T]he absence of a distinction between “personal” and “property” rights in the premises of the framers underscores Rand’s dictum about the integration of political, economic and intellectual freedoms. Only the framers never quite put it so succinctly. One almost wishes she had attended the Convention to instruct them on that point.
James Ely wrote that James Madison, a champion of property rights, wanted to ensure the protection of property rights, and drafted a proposed statement to be attached to the Constitution.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” Perhaps thinking that the purposes of government were self-evident, Congress did not accept this declaration. (p. 54)
But outside the enumerated powers granted to Congress, many men did not think it was so self-evident what the purposes of the government were. Thus the fierce debate for and against a bill of rights in the ratification period. Ely provides further evidence of Madison’s linking liberties with property rights when the Founder drafted the Fifth Amendment:
The amendment provides in part that no person shall be “deprived of life, liberty, or property, without just compensation.” Madison’s decision to place this language next to criminal justice protections, such as the prohibitions against double jeopardy and self-incrimination, underscored the close association of property rights with personal liberty….Like all of the Bill of Rights, however, these safeguards for property were binding only on the federal government. (p. 54)
No sooner had the Constitution with the appended Bill of Rights been ratified in November 1791, and circulated among the states, than lawsuits were filed citing the “takings” (or compensation) and contract clauses in the Constitution relating to state legislative powers.
In Part One of this review, I noted that Ely reveals that the chief violator of property rights was not the young federal government, but the states. In his chapter, “The Development of Property Rights in the Antebellum Era, 1791-1861,” Ely documents the persisting conflicts between the federal government and states. The federal government was largely barred from interfering with “states’ rights” to regulate the states’ internal business and economic activity:
Indeed, state governments were the primary source of economic regulation throughout the nineteenth century. The authority of the states to regulate the use of property was derived from both common law principles and the police power. The common law doctrine of public necessity and nuisance both subordinated the rights of property owners to the interests of the general community. Under the public necessity doctrine, for instance, it was lawful to destroy buildings to prevent the spread of fire or pestilence. (pp. 59-60)
The states still retain such discretionary “police power” to this day. For example, gambling, alcohol sales and/or consumption, the advertising of certain professional services, and prostitution are the subjects of restrictions or outright bans. Today, state “police powers” more or less follow federal and national trends. For example, outgoing Virginia governor Tim Kaine, a Democrat (and now a U.S. senator), signed a state law that banned smoking in all Virginia restaurants and private business establishments, including private clubs and bars, at the behest of a tenacious anti-smoking lobby. Violation of the law carries heavy financial penalties for both establishments and individuals, and not to the exclusion of arrest. The banning of smoking in private venues such as restaurants, bars, parks, and clubs represented a “taking” without compensation to property owners.
Many states, notably Kansas, are technically “dry” states, but allow “local jurisdictions” or counties to permit the sale and/or consumption of alcohol as long as they establish liquor boards and issue licenses to sell liquor “by the glass,” in bulk, or to manufacture and sell alcohol, or to serve it in restaurants or bars. Such laws also provide for state or local inspections of premises or production. Many states also have granted themselves exclusive monopolies to sell “hard” liquor; in Virginia, on the other hand, “soft” liquor, such as beer and wines, is regularly sold in supermarkets with the only restriction being sales to state-defined minors (many also contain age restrictions on sales of tobacco to minors).