Friday, May 23, 2014

Shutting Us Up For Our Own Good

You can't claim that liberals and other statists aren’t industrious. They are tirelessly diligent in their quest to find more ways to infringe upon or abridge our freedoms.

Many of our freedoms are embodied in the Bill of Rights, and have been regularly targeted for amendment or excision, from gun ownership, to freedom of assembly (or association), to freedom of speech vis-à-vis criticizing Islam and campaign finance law restrictions. No right today is sacrosanct or beyond the government's wish to curtail or abolish.

Only just recently, Senate Majority Leader Harry Reid (D-NV), in the wake of his defeat at the Cliven Bundy Ranch in Nevada, introduced a bill to abridge political speech. Breitbart's Big Government reported on May 18th:

On May 15, Senate Majority Leader Harry Reid (D-NV) announced the Senate Judiciary Committee will hold a hearing on June 3 on amending the U.S. Constitution to limit political speech. If ultimately adopted, it would mark the first time in American history that a constitutional amendment rescinded a freedom listed as among the fundamental rights of the American people.

The proposed amendment was introduced by Sen. Tom Udall (D-CO) as S.J.R. 19 and if ratified would become the Twenty-Eighth Amendment. It provides in part that “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect [to] the Federal elections … [and] State elections.” The proposed amendment includes a provision that “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” So Breitbart News, The New York Times, and the mainstream media would be able to say whatever they want, but citizens and citizen groups such as the National Rifle Association could not.

It seems like Harry Reid and his cronies have been reading retired Supreme Court Justice John Paul Stevens's book, Six Amendments: How and Why We Should Change the Constitution, which I reviewed in "Justice Stevens's Liberty-Destroying Amendments," in three parts, the relevant Part here. Stevens recommended adding another amendment that would accomplish Reid's purposes and vitiate any freedom of speech protections. I wrote:

Stevens writes that there is nothing to fear from his proposed amendment:

"A constitutional amendment authorizing Congress and the states to place "reasonable" limitations on campaign expenditures would allow corporations to make public announcements of their views but would prohibit them from engaging in the kind of repetitive and excessive advocacy that the candidates typically employ. It would also repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to spend their shareholders' money in election campaigns." (p. 78)

Do the shareholders want a corporation to spend their money advocating issues? To Stevens, their wishes are irrelevant. Do individuals who encounter "repetitive and excessive" advocacy mind such encounters? That's irrelevant, too. Of course, those on the opposite side of an issue might mind it, but, like Muslims who object to critical things being said and written about Islam, they can just ignore it. Speech, written, oral, or visually, after all, is not a form of physical aggression or force. But Stevens doesn’t want the champions of big government and incremental socialism to be subjected to limitations on "hate speech" that he wishes to impose on financed counter-arguments. Democrats should be free to repeat their "excessive" and "repetitive" messages over and over again. It's the other guy who must  be shut up.  Stevens's suggested amendment, which requires force or the threat of force, reads:

"Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns." (p. 79)

The second half of Reid's proposed amendment to the First Amendment is virtually identical in wording to Stevens's proposed new amendment.

Who will define what is "reasonable" and what is not? Is there an infallible mathematical formula that would define "reasonableness"? It would be okay, by Stevens, to abridge the scope of the First Amendment and thus eviscerate its essential, fundamental meaning, just a little bit, to silence those wealthy, anti-big-government people. vitiate.

How was Reid's proposed gutting of the First Amendment received by the press? With an obfuscating sigh of relief. Greg Sargent of The Washington Post, in his May 15th article, "Reid calls for constitutional amendment on campaign cash," selectively omits mentioning that the Democrats are as guilty of all the charges that Reid levies against the Republicans, that "money is speech and speech is money," that freshets of special interest money "flood our democracy," that only "billionaire oil barons" will initiate a "hostile takeover" of the country. One must ask oneself what level of depraved repression would lead an alleged "journalist" to handily forget which political party has made corruption, election rigging, and living the high life on other people's money a time-honored tradition – a party that has more wealthy donors and supporters than the Republican Party ever had.

Also, according to Reid and accepted uncritically by Sargent (and most liberals):

The argument is that electing Republican lawmakers would do nothing to change this economic status quo, because the GOP continues to be organized around the protection of the interests of their very wealthy backers, whose influence over the process must be broken before any serious policy response to inequality and stalled economic opportunity and mobility can happen.

After all, that recently-revealed Americans for Prosperity memo spelled out that the real goal of all those millions in anti-Obamacare ads is to persuade swing voters that the answer to their economic problems is as little government as possible. As the New York Times detailed recently, this vision of what is good for America would also benefit the Koch brothers’ bottom line to an untold degree. Reid will reference that memo today.

I guess Democrats have no "very wealthy backs," neither in Hollywood, nor in the tech industry, nor in the insurance industry, nor on Wall Street. However, Nicole Flatow of the George Soros-funded Think Progress in her May 15th article, "Why the Senate's Top Leader Came Out for a Constitutional Amendment to Reverse Citizens United," confirmed the link between the wording of Reid's proposed amendment and Justice John Paul Stevens's proposed new amendment, and also the collusion between the two men.

Reid told BuzzFeed that former U.S. Supreme Court Justice John Paul Stevens persuaded him to join the effort, after Stevens called for the amendment earlier this year in his new book. Reid, who decides what votes get called as majority leader, said he will now hold hearings on the amendment proposed by Sen. Udall, as well as call a vote on the House floor.

Reid has not been alone in proposing to gag corporations and non-Democratic non-profits over the amounts of money they spend on issues during election periods. Flatow wrote:

Since 2010, movements to pass a constitutional amendment overturning the U.S. Supreme Court’s decision in Citizens United v. FEC have gained significant ground, with a number of states passing resolutions calling for a constitutional amendment. As one California legislator put it who introduced the bill that passed his state: “No one is underestimating how difficult it is, and justifiably so, to amend the Constitution. But being silent is worse.” And a number of top Democratic senators have proposed amendments in Congress for several years now, including Tom Udall (NM), Michael Bennett (CO), Tom Harkin (IA), Dick Durbin (IL), Chuck Schumer (NY), Sheldon Whitehouse (RI), and Jeff Merkely (OR).

Many of the usual suspects., non sunt?

To Democrats and other power-lusting politicians, the Constitution has served as an impediment to "real social change."  And that Constitutional requirement of needing either two-thirds of both houses of Congress, or passage by legislatures in three-fourths of states, to enact an amendment, is just another disdained, antiquated obstacle to "voicing the people's will" and empowering the democratic mobs controlled and manipulated by the Democrats.

The premier opponent of those Constitutional impediments – at least, the one in the brightest limelight – is President Barack Obama. He, Reid, and all the other suspects are on the same page. Paul Roderick Gregory in his September 23rd, 2012 Forbes article, "Why The Fuss? Obama Has Long Been On Record In Favor of Redistribution":

In 2001, then state senator and University of Chicago law lecturer, Barack Obama, sat down for a public radio interview. At the time, he did not anticipate a near-term run for the presidency. He spoke candidly and deliberately about how to “break free” of Constitutional constraints against redistribution to provide “economic justice.” In the course of his interview, Obama laid out the electoral strategy of cobbling together the “power coalitions” that have been the hallmark of his 2012 re-election campaign.

Among other things he said during that interview, Obama opined:

First: “We still suffer from not having a Constitution that guarantees its citizens economic rights.” By positive economic rights, Obama means government protection against individual economic failures, such as low incomes, unemployment, poverty, lack of health care, and the like. Obama characterizes the Constitution as “a charter of negative liberties,” which “says what the states can’t do to you (and) what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.”

Second, Obama regrets that the Constitution places “essential constraints” on the government’s ability to provide positive economic rights and that “we have not broken free” of these Constitutional impediments.

Third, Obama concludes that we cannot use the courts to break free of the limited-government constraints of the Founders. The courts are too tradition and precedent bound “to bring about significant redistributional change.”

Fourth, Obama argues that economic rights that the state must supply are ultimately to be established at the ballot box. Those who favor redistribution must gain legislative control through an “actual coalition of powers through which you bring about redistributive change.” The electoral task of a redistributive President is therefore to craft coalitions of those who stand to benefit from government largess. The legislature, not the courts, must do this “reparative economic work.”

Gregory, writing before the national election of 2012, which gave Obama a second destructive term to achieve the Progressive, "redistributional" agenda, warned:

An Obama electoral victory based on “power coalitions” unconstrained by “negative rights” would fulfill the Founders’ dread of an “overbearing majority.” As James Madison warned in 1787:  “Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.…. If a majority be united by a common interest, the rights of the minority will be insecure.”

The Constitution’s framers used the separation of powers and the Bill of Rights (most importantly the due process clause of the Fifth Amendment) to render “the overbearing majority …unable to concert and carry into effect schemes of oppression.” It is these “negative rights” that Obama proposes to eliminate. With them disappear restraints on limited government, and anything goes.

And everything has gone. The restraints on Congressional, executive, and federal power now are little more than strings of gossamer, thanks also to a Supreme Court that has lost sight of its purpose. Our rights are no more secure than they would have been in Nazi Germany or Soviet (or Putin's) Russia.
But, there are back-door ways to quash freedom of speech without having to resort to anything as formal as a proposed constitutional amendment. The 2002 McCain-Feingold Campaign Finance Act, which dictates what and when one may speak about candidates for office, ought to have been struck down by the Supreme Court the moment the first suit about its constitutionality was filed. Instead, the Court has simply crippled it with the Citizens United v. FEC case.

Dinesh D'Souza, a prominent conservative writer and filmmaker, and unabashed critic of Obama and his policies, was charged with violating the Federal Election Commission's rules on donor limits. Paul Bond, in his Hollywood Reporter article of May 20th, "Dinesh D'Souza Pleads Guilty to Making Illegal Campaign Contribution," wrote:

In exchange for D’Souza’s plea, prosecutors are expected to drop the more serious charge of making false statements to the Federal Election Commission, a crime that carries a maximum sentence of five years in prison.

D’Souza was indicted in January for asking some friends to donate money to the campaign of Wendy Long, a Republican who ran unsuccessfully against Democratic incumbent Sen. Kirsten Gillibrand in New York in 2012, and allegedly promising to reimburse them for their donations.

Bond noted:

From the beginning, attorney Benjamin Brafman characterized his client’s alleged transgression as “an act of misguided friendship,” and he and others have said federal authorities were engaging in payback for D’Souza’s movie 2016: Obama’s America, a hit documentary that portrayed President Barack Obama in a negative light. “

It’s a remarkably selective prosecution, considering Obama raised millions of dollars under similar circumstances and donors merely faced civil fines while D’Souza is charged with felony violation of federal law,” Sen. Ted Cruz of Texas told The Hollywood Reporter in February.

If D'Souza had not pleaded guilty, a trial would have been necessary, and on the "illegal" contribution charge alone, if found guilty, he could have been sentenced to a maximum of two years in prison.

In 1957, Ayn Rand's prophetic novel, Atlas Shrugged, was published. It featured, in one chapter, the nature of laws such as the Campaign Finance law. In that chapter, a federal bureaucratic villain, Dr. Floyd Ferris, is trying to blackmail an industrialist into "donating" his new metal to the nation as a "gift." The industrialist is "guilty" of buying more copper than federal law allowed, and also for refusing to honor a federal purchase order for his product. He tells the industrialist:

"Did you think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against – then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kinds of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of lawbreakers – and then you cash in on guilt. Now that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."*

And that is the nature of the Campaign Finance law, a law created to shut us up and to punish us if we don’t shut up, even if that takes the form of a scream of pain. That is the purpose of Justice Stevens's and Harry Reid's constitutional amendments, to silence the Dinesh D'Souza's of this country. The proposed amendments are not targeted at individuals who "collude" with other individuals to cobble together more than the "allowed" minimum to any organization or candidate. The existing law, together with the proposed amendments, are specifically targeted at prominent individuals such as D'Souza, to make an example of them, so everyone with lesser means will tremble in fear, and fall into line.

The purpose? To preserve and expand the political power of the Democrats, of all the statists in and out of government, by silencing their critics. And that issue is aside from the White House siccing the IRS on conservative groups for not shutting up.

The Progressives, the Left, and the Democrats want to shut us up – warning that if we know what's good for us – such as federal agents not hounding us and taking us to court, or refraining from a plan bash on our skulls – we'll shut up.

Try me.

*P. 436. Atlas Shrugged, by Ayn Rand (1957). New York: Dutton/Penguin Books, 1992. 1168 pp.

Tuesday, May 20, 2014

The Guardian of Every Other Right: Part V

"Intellectual freedom cannot exist without political freedom; political freedom cannot exist without economic freedom; a free mind and a free market are corollaries." – Ayn Rand, 1963*

Chapter 7 of James Ely's book, "The New Deal and the Demise of Property-Conscious Constitutionalism," chronicles the Supreme Court's timid retreat from a semi-efficacious defense of property rights, unsure of the propriety of property rights unless linked to the "public good," browbeaten by "public opinion," and savaged by the Progressives.

The new political outlook emphatically rejected the laissez-faire philosophy. Justice Louis D. Brandeis expressed this reform sentiment when he declared in 1932, "There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs." (Italics mine; p. 125)

"Experimentation" meaning that Progressivism was basically a John Dewey-esque program of applied political and economic Pragmatism.  While "constitutionalism" relied  on a strict interpretation of the Framers' principled meanings – an "ideology" regarded with hostility by Progressives and others of a collectivist stripe – Progressivism is an ideology empty of any principles except a desire and commitment to control, rule, and "harmonize" the whole country and make it fit into an authoritarian straightjacket. If a new" sin" tax or regulation of manufacturing or a new levy on corporate profits doesn’t work here, maybe it'll work over there, and if it doesn’t, we can try something else. Never mind the inconvenience to property owners and the dislocation of market forces the experiment produces. You can't achieve an omelet of "social equity" without breaking some eggs. Or some heads. Theories and principles and definitions just get in the way.

Borrowing from the Progressive legacy, President Roosevelt's New Deal program was grounded on the notion that government had an affirmative duty to promote the general social welfare….Congress and the states enacted an extraordinary array of measures that greatly enlarged governmental supervision of the economy and sought to redistribute wealth and economic power. This social welfare approach flatly contradicted the insistence on limited governmental activity, marketplace competition, and respect for property rights that were at the heart of traditional constitutionalism. (Italics mine; p. 125)

I emphasized "traditional" because a tradition is simply an old practice or "habit" to acknowledge something that might have been good and "worked" – as freedom has "worked" or proven its value. But if one's enemies snort at and wish to discard "tradition" because it's "old" and replace it with a haphazard, "let's see if this works" non-value, with submission to government authority, and with the populist "will of the people," a situation has been reached when the defenders of freedom should restate, renew, and perhaps even rediscover the founding principles which they beforehand only blindly revered. This the Court largely did not do.

Progressivism, on the other hand, is reminiscent of a comedian's holding down one social or economic "ill," only to cause one or more other "ills" to pop up elsewhere. The "ills" multiply exponentially every time he attempts to hold anyone of them down, and the comedic Progressives concoct more solutions to the "ills" they themselves have caused. Think "The Three Stooges," only what Progressivism has done to the country is no laughing matter.

Ely writes that the composition of the Court was almost evenly divided between justices who were hostile to the New Deal, those who were merely uneasy with it, and those who were committed Progressives:

The Supreme Court's stubborn defense of entrepreneurial values precipitated a constitutional crisis. Ultimately, under great political pressure and President Roosevelt's threat to pack the Court, several justices shifted their position and accommodated the New Deal's economic and social program. As a result of the constitutional revolution of 1937, the Court abandoned its historic role as a protector of individual property rights and permitted the federal government and the states to play a major role in directing American economic life. Thereafter, the Court relegated property rights to a secondary position and largely turned its attention to other matters. (p. 126)

For example, Ely cites a case involving mortgages and the quasi-theft or "taking" of property:

At issue in the leading case of Home Building and Loan Association v. Blaisdell (1934) was a Minnesota act imposing a limited moratorium on the foreclosure of farm mortgages. Designed to safeguard the ownership of homes and farms, the statute temporarily suspended the mortgage obligation while allowing the mortgagor to remain in possession of the payment of a reasonable rent. The mortgage moratorium was similar to the debtor-relief laws often declared unconstitutional in the nineteenth century as an impairment of the obligation of contract.

By a five-to-four margin, the Supreme Court held that the moratorium did not violate the contract clause. Clearly influenced by the economic emergency, Chief Justice Charles Evans Hughes ruled that contracts were subject to the reasonable exercise of state police power….He weighed the contractual rights of the parties against the public-interest arguments of the state to determine whether the infringement of the mortgage contract was reasonable. (pp. 126-127)

Ely highlights the Court's continuing downward fall from principles to wistful pragmatism:

The Supreme Court also approved federal regulation of agricultural production [a field the Court had previously conceded was the states' exclusive realm of control]. New Dealers hoped to increase crop prices by restricting the supply. In Munford v. Smith (1939) the justices affirmed the second Agricultural Adjustment Act, which provided for the imposition of marketing quotas on farmers to reduce the volume of crops. The Court went a step further in Wickard v. Filburn (1942) and upheld federal power to set quotas for wheat consumed by a farmer for livestock feed and household food on his own land. Justice Robert H. Jackson, writing for the Court, defined congressional authority under the commerce clause in sweeping terms, rejecting the distinction between direct and indirect effect on interstate commerce. Jackson reasoned that the cumulative effect of consumption of a small amount of homegrown wheat by many farmers could have a substantial influence on the market price of wheat.

For all practical purposes, the Supreme Court recognized an unqualified power in Congress to reach any economic activity under the commerce clause. Indeed, the justices stated in 1946 that federal commerce power was "as broad as the economic needs of the nation." (Brackets mine; p. 136)

It is obvious that it never occurred to the justices to ask themselves whether the solution to answering the nation's "needs" was to get the government out of the economy, where the Framers never intended it to be. 

In more instances than can be repeated here, Ely records the "progress" of the Court to becoming a virtual befuddled handmaiden of Progressivism under the New Deal. The Court had resorted to what can only be characterized as Constitutional bean-counting. "These beans are permissible, those others, not. And those over there might not be beans at all, but we're not sure. We'll err on the side of caution. We don’t want the president and the populace getting mad at us again."

Ely chronicles the succession of taxes and controls imposed by Congress:

In the Emergency Price Control Act of 1942, Congress conferred extensive powers on the Office of Price Administration to fix prices of commodities "which will be generally fair and equitable."….

…[T]he Court…[in 1944] affirmed the act's rent control provisions, rejecting the contention that such controls amounted to a taking of property….

Another New Deal innovation was the use of federal taxing power for social welfare purposes. The Social Security Act of 1935 imposed a special tax on employers and employees for the payment of benefits to the aged…Adopting a liberal view of the taxing power, the Supreme Court in Helvering vs. Davis (1937) expansively ruled that Congress could spend money for the general welfare….In effect, the Court sanctioned a comprehensive power in Congress to levy taxes for any purposes that were thought to benefit the public….

Once the Supreme Court accepted the New Deal, the justices abruptly withdrew from the field of economic regulation. This reflected a monumental change in the Court's attitude toward property rights and entrepreneurial liberty. (Brackets mine; pp. 138-139)

Ely emphasizes that the "cornerstone of this new constitutional direction was a judicially created dichotomy between property rights and personal liberties." He quotes James L. Oakes in his 1953 Washington Law Review article, that, as far as the Court was concerned, "property rights were essentially confined to a legal dust bin."

Ely's last chapter, "Property Rights and the Regulatory State" is not so much a discussion of the timorous, muted revival in the Court of a concern for property rights as it is a sketch of a vanquished nation, vanquished by its own government and the highest court in the land.

Businesses adjusted to the regulatory régime and prospered. Although sharp differences remained concerning the precise role of the government in managing the economy and controlling the usage of private property, few urged a return to a largely unregulated free market before the New Deal. The dominant political ideology supported the regulatory state and looked for a government solution to economic ills….The federal and state governments mushroomed steadily in size and played a large role in nearly every aspect of the economy. As the network of economic regulations grew more intrusive, there was an erosion of individual property rights. Some commentators even suggested that the basic notion of private property ownership had disintegrated. (p. 142)

In truth, what was disintegrating was the epistemology and metaphysics of the justices. Ely names another culprit on the Court:  

In the 1950s and 1960s, the Supreme Court, under the leadership of Chief Justice Earl Warren [appointed by President Dwight D. Eisenhower], embraced the jurisprudence of substantive liberalism. Striving to achieve egalitarian goals, the justices sanctioned the growing welfare state and consistently deferred to legislative bodies with respect to economic and social issues….In this climate, the security of property and contractual rights, long a primary function of the federal judiciary, received scant attention. Heavily influence by New Deal constitutionalism, the Court virtually eliminated property rights from the constitutional agenda for several decades. (p. 143)

The post-New Deal decision-making behavior of the Court vis-à-vis property rights protection can be likened to a man in a semi-coma, babbling incoherently one moment, making semi-lucid observations the next. Ely records some of the oscillating rulings of the Court. In regards to the "takings" clause:

As discussed earlier, the Supreme Court has long recognized that land use controls could have such a severe economic impact as to represent a taking of the property. In practice, however, the justices have been reluctant to invoke the doctrine of regulatory taking and have allowed Congress and the states wide latitude to impose conditions on the use of land. The Court has not established any formula for determining when a restriction of property has gone too far, preferring instead to rely on an ad hoc, case-by-case inquiry. Nonetheless, the justices have repeatedly declared that regulations are not unconstitutional simply because they prevent the best use of land or dramatically diminish its value to the owner. (p. 160)

Ely cites one notable instance of this policy:

The Court has allowed cities to enact land use regulations that enhance the aesthetic features of municipal life. In Penn Central Transportation v. New York (1978), the Court by a six-to-three vote, sustained the designation of Grand Central Terminal [now privately owned] as a historic landmark, even though such an action prevented the landowner from modifying the building in any manner without municipal permission, thereby causing a drastic reduction in its value. Justice William Brennan, speaking for the Court, stressed that the landowner could use the terminal for its original purpose and was able to earn a reasonable return on its investment….But the factors, such as "distinct investment-backed expectations," and the "character of the government action" are hazy, and there is no indication of how much weight should be assigned to each factor. The result is a fact-bound and murky test heavily loaded in favor of governmental regulation. In dissent, Justice [William] Rehnquist argued that a taking had occurred and that the costs of a historic preservation program should be borne by taxpayers generally, not individual landowners. (Brackets and Italics mine; p. 160)

One could also argue that the one "taking" created another "taking": The taking of tax dollars "generally" to assist the property owner in complying with the terms of the taking of his property for "historic preservation" purposes. One supposes that Justice Rehnquist overlooked that angle. But then, the Court had already sanctioned a medley of takings for the "general welfare" and "public benefit" reasons, so that aspect of the Grand Central Terminal case naturally would not have occurred to him.

In another land use case, Agins v. City of Tiburon (1980), Ely reports that the Court sided with the municipality and its zoning restriction of construction on five acres by a developer of single-family homes.

The Supreme Court rejected the argument that the enactment of the ordinance constituted a taking or property. Writing for the Court, Justice [Lewis F.] Powell noted that the application of zoning laws effected a taking only "if the ordinance does not substantially advance legitimate state interests…or denies an owner economically viable use of his land." He found that the Tiburon ordinance served a legitimate function by preserving open space and enduring the orderly development of residential property. (Brackets mine; p. 161)

Ely introduces the reader to a new kind of "property" the Court was willing to consider, one that is so bizarre and irrational that one can hardly credit the justices with any kind of moral standing: Welfare and entitlements.

In Goldberg v. Kelly (1970) the justices, by a vote of five to four, edged towards acceptance of the new property concept. They held that New York violated due process procedural guarantees by terminating welfare benefits without a prior hearing. Ultimately, however, the Supreme Court declined to treat most entitlements under government programs as traditional property rights for the purpose of due process. Instead, the Court viewed government benefits as merely statutory creations and preserved in large measure of legislative authority to manage and even eliminate benefit schemes….

Justice Brennan, a persistent critic of extending constitutional protection to traditional economic interests, was a leader in the move to recognize entitlements and public employment as forms of property. Brennan thus refurbished the conservative doctrine that respect for property rights secured political freedom to serve egalitarian ends. The conservative justices, on the other hand, rejected the new property theory, adopting the liberal approach that the courts should defer to state control of economic matters. The result of this development was that government benefits were accorded some procedural safeguards but never received the same protection as traditional property rights. (p. 170)

One is at a loss to classify such thinking as schizophrenia, or as evidence of a split personality disorder.

In his short Epilogue, James Ely sounds a dour, pessimistic note about the future of property rights in the context of today's political climate, especially (from my own perspective) given the abusive, arrogant, wholly Progressive (some would say Marxist) character of the current administration.

…[T]he facile suggestion in many judicial opinions after 1937 that economic questions should be left entirely to the political process is also troubling. If individuals or enterprises have only those property rights that legislators choose to recognize, then property ownership is simply a matter of legislative sufferance. No other important rights are treated in such a cavalier fashion….Much legislation frankly seeks to achieve a wider distribution of wealth by divesting owners of their right to use property to its maximum advantage and by altering contractual arrangements. Such opportunistic behavior is less painful to lawmakers than levying taxes to finance government programs. (Italics mine; p. 174)

On the contrary, other rights, those to be found in the Bill of Rights, are or have been treated in worse than a "cavalier fashion," from gun ownership, to the right to assembly (or association), to freedom of speech vis-à-vis criticizing Islam and campaign finance law restrictions. The "regulatory state" knows no limits on its appetite for power. No right today is sacrosanct or beyond the government's wish to curtail or abolish.

Only just recently, Senate Majority Leader Harry Reid (D-NV), in the wake of his defeat at the Cliven Bundy Ranch in Nevada, introduced a bill to abridge political speech. Breitbart's Big Government reported on May 18th:

On May 15, Senate Majority Leader Harry Reid (D-NV) announced the Senate Judiciary Committee will hold a hearing on June 3 on amending the U.S. Constitution to limit political speech. If ultimately adopted, it would mark the first time in American history that a constitutional amendment rescinded a freedom listed as among the fundamental rights of the American people.

The proposed amendment was introduced by Sen. Tom Udall (D-CO) as S.J.R. 19 and if ratified would become the Twenty-Eighth Amendment. It provides in part that “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect [to] the Federal elections … [and] State elections.” The proposed amendment includes a provision that “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” So Breitbart News, The New York Times, and the mainstream media would be able to say whatever they want, but citizens and citizen groups such as the National Rifle Association could not.

Ely seems to agree with me when he ends his book:

The future path of the Court is difficult to predict. A return to a vigorous property-conscious constitutionalism, however, appears highly problematic. Despite renewed interest in the rights of property owners, it would require a sea change in the legal culture before property rights are accorded the same level of protection as other individual rights. In the last analysis, the viability of property rights, perhaps like all other individual rights, rests on a broad popular acceptance. The courts will continue to strike a balance between popular democracy and private property ownership. (Italics mine; pp. 174-175)

Again, on the contrary, a recognition of individual rights does not rest "on a broad popular acceptance" of them, but on the integrity and perspicuity of justices. No balance "between popular democracy (the Framers founded a republic, not a democracy, which they abhorred) is possible." Mob rule does not establish the validity of individual rights. The problem can be solved when the justices recognize, as Ayn Rand recognized, that "intellectual freedom cannot exist without political freedom; political freedom cannot exist without economic freedom; a free mind and a free market are corollaries."

The Guardian of Every Other Right: A Constitutional History of Property Rights, by James W. Ely, Jr .. New York: Oxford University Press, 2007. 216 pp.

*From "For the New Intellectual," in For the New Intellectual: The Philosophy of Ayn Rand, by Ayn Rand. New York: Signet, 1963. 224 pp.