The Makings of a Just Society

Edward J. Dodson

[1994]

Citizens of the newly-formed United States of America found themselves with an opportunity unique in the history of mankind to essentially restructure an entire system of positive law and, by definition, steer a course very different from that of any society before or since. An appropriate question, then, is just how close the early statesmen and public officials -- in concert with the general citizenry -- came to creating a society the laws of which meet an objective test of justice. If it can be shown that the nation's initial body of positive law was based on just principles, it then remains for us to evaluate subsequent changes to that system measured against the original standard. In so doing, we are then able to explore the areas where the socio-political system structurally advanced or thwarted the principles of justice and the effects this has had on the development of the nation.

For such an analysis to yield important insights, however, one must be able to objectively identify a just standard of socio-political arrangements against which to evaluate the accomplishments of our forefathers. This effort requires the application of reason, a reliance on our moral sense of right and wrong, as well as a scientific study of human behavior. History records that those involved in our nation's founding and the framing of our government not only provided the moral and political sparks in resistance to external domination but also gave considerable thought to the principles on which self-government ought to be based. They often acted instinctively in the acceptance or rejection of certain socio-political arrangements, engaged in prolonged discussion and compromise and looked for guidance to both principle and tradition.

From the beginning of European colonization, the experience of life in North America under British rule was quite unique. Although subjects of the crown, the colonials were for long periods very much isolated from the long arm of central authority. Many of the earliest communities were organized under communitarian principles of voluntary association. Rules of conduct might be strict and toleration of freedoms of conscience or action minimal, but the sense of oneness with each other had far more in common with indigenous tribal groups than with Old World societies. The gradual increase in population, particularly where this occurred by the arrival of people of different ethnic, religious or cultural heritages, placed as great deal of stress on these established communities. Moreover, as population increased and the land yielded sufficient production to support a lively exchange, a propertied class emerged in each colony consisting of a small number of landowning families. These same families dominated local governing bodies. Many sent their sons home to Britain or to the European continent for their formal education. Over time, the colonial elite also helped to found colleges on the American continent.

Another important distinction between Britain and its North American colonials was the birth of religious pluralism. In the practice of religion more than in any other socio-political dynamic, the independence from government intrusion over several generations fostered an ingrained respect for freedom of conscience as a fundamental human right. As a consequence, many of those who would eventually assume leading roles in the struggle for independence from Britain combined the very real experience of self-government with a socio-political philosophy that began to champion the rights of the individual. From the writings of Hobbes, Locke, Harrington, Turgot, Smith, Rousseau and others, the colonial elite acquired a philosophical frame of reference against which they compared their experiences of building a new society out of a virgin frontier. The result was an increasingly outspoken commitment to individualistic values. A dialogue spread throughout the colonies on the legitimacy and merits of self-government, on the constitutional basis for civil rights and, finally, on the nature of the colonials' relationship with the British crown.

After the defeat of French forces in North America, Britain's conservative leaders decided it was time to levy taxes on the colonials in proportion to the cost of their defense. Debate raged on both sides of the Atlantic over the rights of the Crown and Parliament to not only tax the colonials but to legislate for them as well. Although these debates became increasingly emotional and clouded (on both sides) by vested interest and a defense of the status quo, the use of printed circulars and the press by all factions attracted widespread citizen interest and involvement. Leading spokespersons in the colonies and in Britain traded arguments and exposed one another's views to challenges on the basis of fundamental principles attached to the rights of the individual in society. Many were well practiced in the art of rhetoric and used their talents to maximum advantage.

As events moved toward conflict and then crisis, history was repeated, as those who challenged the authority of the British constitution were condemned as radicals by those most threatened in Britain. Within the colonies, the debate soon moved well beyond concerns over British policies; with the talk of independence also came a prolonged debate over what form of government ought to be constituted once the colonies were free of the empire.

This was not an endeavor undertaken without serious personal risk to those involved. Men of radical ideas in both the New and Old Worlds lived under threat that the police powers of the State might be invoked against them should their writings or activities too seriously attack those in power. Freedom of expression was not a right protected by government. Although this right remains incompletely defined and imperfectly secured (even with the world's social-democracies), a determined resistance to oppression by a significant transnational community has made possible the open search for truth without having to be fearful of what objective investigation and the application of reason might yield. In this sense, freedom of expression presents the greatest challenge to entrenched privilege and oppression available to those dedicated to constructing just socio-political arrangements and institutions.

Where a society's socio-political arrangements and institutions are the subject of investigation, the challenge for social scientists is to identify an objective set of principles by which to measure the character of any society as just or unjust. And, as all societies are comprised of individuals formed into various sub-groups, these first principles are established by defining which actions taken by the individual fall legitimately within the constraints of justice, and which exceed those constraints. From this perspective, we must identify what responsibilities, if any, we have to one another as members of the same society and species.

Our Moral Sense

To a very large extent, we are directed by what is a combination of an instinctive and nurtured moral sense of right and wrong where issues of justice are concerned. Such general feelings are made more concrete by reason and an objective evaluation of the consequences of various types of behavior. Common to our actions is the instinctive connection made between cooperation and survival. Infants survive and reach maturity, for example, only when adequately nurtured and protected. There is, in this relationship of dependency, a responsibility imposed by nature on the competent members of the group to nurture and protect those who are incompetent. Cooperation is, in this way, directly connected to the long-term survival of the group. Behavior that diminishes the prospects for survival of the individual is, at best, unwise, and, in circumstances that affect anyone other than the acting individual, unjust. From this observation there arises a clear societal responsibility to impose constraints on individual behavior that threatens others. To guide us more specifically, informal and formal codes have evolved that distinguish sanctioned behavior from what reason and our moral sense reveal to be violations of that which is just.

Philosophers have long dwelled on the questions of justice raised by the formation of hierarchical leadership structures in virtually every society. For the most part, however, philosophers from antiquity on expended most of their effort in rationalizing and defending socio-political arrangements constructed to advance the survival of the few at the expense of the many. We can trace our modern concern for linking the rights of individuals within society to our natural rights as members of the same species to the ground breaking work of John Locke, who attempted to distinguish between the actions of man that were inherently just (and, thereby, within the scope of liberty) and those which were not (and, thereby, within the scope of license). A small and rather elite group of philosophers and political activists of the eighteenth century then employed themselves in the formation of a new, practical philosophy that debated in great depth the rights and duties of the individual in a society organized for the protection of such rights. In North America, we celebrate the contributions of Benjamin Franklin, John Adams, Thomas Jefferson, Thomas Paine, Alexander Hamilton and a cadre of other original thinkers who dominated the last half of the eighteenth century. Across the Atlantic the dialogue was carried forward by the likes of Smith, Turgot, Du Pont de Nemours, and Rousseau. Although there have been many important contributions made by others along the way, there is one individual, in particular, who has provided us with a valuable synthesis of the principles that reason and scientific investigation have yielded. That person is philosopher Mortimer J. Adler.

One of Adler's great contributions to socio-political thought is his refinement of the Lockeian treatment of natural rights. In response to those who have taken the more extreme (i.e., anarchistic) stand in defense of individual freedom, Adler counters that " [u]nlimited freedom -- freedom unrestrained by justice -- cannot be maximized for all." Therein lies the inherent injustice of unlimited freedom and, conversely, the need for government as a vehicle for assigning to those employed by the nation the means with which to secure justice and protect liberty. Our legitimate concern is with liberty, which can only be achieved, writes Adler, "within the framework of the de jure state and government," which by definition means that "government must itself be rectified of all of the injustices that it has so far historically exhibited and must become perfectly or completely just." Application of the principle upon which justice is based requires, however, a clear understanding of what distinguishes liberty from license:

Liberty is freedom exercised under the restraints of justice so that its exercise results in injury to no one. In contrast license is freedom exempt from the restraints of justice and, therefore, injurious to others in infringing their freedom as well as violating other rights.

The "other rights" Adler alludes to are what we generally include in the list of natural or human rights. The source of these rights is our "common humanity;" that is, our sharing of the "same species-specific powers or properties." Although our abilities and attributes as individuals might differ by degree, we are of the same kind (i.e., species). By virtue thereof, we are also possessed of the same rights within the society of mankind. These are principles that transcend time and place and cannot be set aside even by an absolute majority guided by democratic institutions.

Government is necessary because individuals (alone or collectively) tend to exercise license in their behavior at the expense of the human rights of others. Where reason and our moral sense tell us that certain types of actions (e.g., murder, rape, assault, destruction or theft of property) are inherently unjust, the individual must be constrained from exercising such license or, in a manner determined by consensus, penalized upon discovery. These are the responsibilities to be carried out by de jure government. Where the State sanctions license, the body of positive law permitting such actions to occur is inconsistent with just principles and must be amended or replaced.

License Juxtapositioned Against Liberty

What has proven difficult for even those of us directed by the best of intentions is distinguishing clearly between liberty and license under positive law. An effort to reach universal agreement on the identification of privileges has not been systematically pursued. By virtue of the colonial rebellion against Britain, the system of hereditary privilege associated with monarchy and aristocracy was denounced and discarded. In Common Sense and The Rights Of Man, Thomas Paine moved into the vanguard of transnational thought by vigorously attacking the vested interests that for so long had denied mankind the benefits of representative government subject to the constraints of a written constitution. More than this, however, he attacked as privilege, as license, the system of titleholdings in nature that permitted the landowning class to confiscate as rent an ever larger share of production while evicting millions of peasant farmers from the land in order to raise sheep and cattle. Paine saw this as an Old World injustice and did not, for the same reasons as Jefferson, envision similar consequences eventually arising in North America. Very few constitutional scholars, legal theorists, socio-political philosophers or social scientists of the nineteenth or twentieth centuries have recognized as did Paine that titleholdings in nature are, indeed, privileges that yield to the recipient an undeserved economic benefit.

When a landless (and, propertyless) class finally appeared and grew in North America, the circumstances seemed on the surface to be quite different from those of the Old World. A written constitution and representative form of government safeguarded what most citizens of the eighteenth century had understood to be the essential elements of liberty. Only as the nineteenth century progressed did it become evident that these institutions were unable to prevent the concentrated control of the nation's land and natural resources. Jefferson's hope for a society dominated by yeoman farmers was disappearing, and even he eventually recognized the benefits of encouraging manufacturing and commerce. What his generation did not anticipate was the rapid pace of change from an agrarian to an industrially-centered and urban-dominated society. The nineteenth century was also characterized by a rapid increase in population and settlement of the continent under a system of positive law that not merely sanctioned but encouraged distribution of the public domain (i.e., our common birthright) to a small number of corporations and individuals. Natural resources were not consumed; they were devoured. Millions of acres of land and control over the natural resources they contained were, in practical terms, fenced off and the majority of the population required to pay the titleholders for access, or were denied access altogether.

The one individual who, more than any other, then brought renewed attention to the injustice associated with the nation's land tenure system, was the newspaper editor, social reformer and political economist, Henry George.

Henry George And The Twilight of Political Economy

What Henry George brought to the transnational quest for justice in our socio-political arrangements and institutions was the combination of an inquiring mind and the experience of trying to earn a living in a land of supposed unparalleled opportunity, but where millions of people suffered from an inability to find employment for their labor. Like Paine, George attacked institutionalized privilege on both practical and philosophical grounds. He used the power of the press to push for reforms and acquired the analytical skills of the political economist to present his findings in a scientific framework. More than this, however, he pushed his adopted scientific discipline to new heights of explanation and prediction.

What George discovered and attempted to prove is that the operation of markets is a driven by human behavior. Socio-political arrangements and institutions (i.e., systems of positive law and the operation of government) are externalities to the fundamental ways in which individuals interact. George learned from his study of history and from observation that at the very foundation of human behavior is an important constant; namely, that man seeks to satisfy desires with the least exertion. In effect, this constant serves as a first principle upon which to build the study of human behavior and social organization. History and observation also reveal a tendency in man to be monopolistic under conditions of unlimited freedom. Reason, then, directs society -- through government -- to institute protections against monopolistic behavior.

Paine, more than any other writer of his era, had argued on the basis of reason that among the equal rights of man, the right of access to the earth was paramount to survival. Positive law that sanctioned individual titleholdings in nature involved, therefore, creation of an unnatural form of property in nature. The remedy he offered was rough in design and went largely unnoticed by a population of yeoman farmers secure in their own property. Only after the War Between The States and the final settlement of the frontier did Henry George and other concerned participants see the connection between land monopoly and mass poverty. For George, the evidence of present everywhere he traveled. Rapid population growth and the virtual consumption of the frontier had brought on the very conditions the founding fathers thought would take hundreds of years to appear. What made Henry George memorable as an historical figure was not merely his keen insights but his remarkable success in stimulating a populist movement the objective of which was to eliminate the causes of the nation's social and economic problems while retaining the Constitution's legitimate protections of individual liberty. George's message was inflammatory but not anarchistic. He began as a voice in the wilderness, but others listened as he called out a warning in the name of liberty and republican democracy:

[A]bsolute political equality does not in itself prevent the tendency to inequality involved in the private ownership of land; and it is further evident that political equality, coexisting with an increasing tendency to the unequal distribution of wealth, must ultimately beget either the despotism of organized tyranny or the worse despotism of anarchy.

And, as did Paine, George concluded that justice could be served by requiring titleholders to compensate the rest of society for this privilege by paying a ground rent. Paine's insights were largely instinctive. George had the benefit of David Ricardo's theoretical work and used this to build an exchange theory of value that told society just how much rent to collect. With this refinement to the human rights doctrine presented by Mortimer Adler, we come to the foundation of justice on which the socio-political arrangements and institutions of eighteenth century European-Americans can be judged. What this foundation directs us to reason is:

1. That we are all equal in our humanness; and, therefore, we possess rights necessarily associated with a truly human existence;

2. That the earth is essential as the source of goods necessary for such an existence; and, therefore, each individual has an equal right to access the earth and all that nature freely provides;

3. That liberty is the exercise of one's legitimate human rights, by definition the act of which in no way infringes upon the liberty of others;<

4. That license is the resort to action which restricts the liberty of others; and, therefore, requires some type of corrective action on the part of the State in order to preserve justice;

5. That there are two primary categories of license, the first of which is sanctioned by positive law and creates unnatural property (primarily, private appropriation of the value of nature but also monopolistic sanctions granted in production and commerce); the second of which violates moral and ethical standards of individual behavior and must be prevented or penalized; and

6. That positive (i.e., manmade) law meets the test of justice the extent to which it is consistent with the principles of protecting the individual's natural rights as described above and preventing the unbridled exercise of license.

Part 2 The Break With Britain A Conservative Rebellion Driven by Radical Rhetoric?

Discontent among what began as a large minority of Britain's colonial subjects in North America arose gradually and in response to actions taken by political leaders in the mother country to exercise greater control over colonial affairs. Eventually, colonial challenges to the authority of King and Parliament found their way into the newspapers and periodicals circulating throughout the colonies (and, to a lesser extent, in Britain). As discontent became protest and the general population took sides, not only British domination but many institutions of colonial society came under attack.

When the colonials finally began to express their grievances, they found a rich heritage of dissent available to support their cries against the perceived injustices of Parliamentary acts and Crown prerogatives. The colonials and their advocates in Britain claimed individual and collective rights secured by England's own glorious revolution. The found in John Locke a champion for their cause and in writing his powerful statements conservatives in Britain could hardly ignore. To many within the ranks of the conservative colonials, they were being victimized by a vast corruption of the social contract; and, when such a condition prevailed, the duty of people was to act to secure the rights they held against their government:

As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power anyone has in his hands, not for the good of those who are under it, but for his own private, separate advantage.

What Locke and others had written, a great many colonials accepted intuitively as the condition of their existence. A new generation of writers selectively combined the wisdom of Old World philosophers and theoreticians with rhetoric appropriate to their current struggle in an effort to redefine "the social and governmental contract."

The attachment of philosophers to a higher level of principle than what was operating in Britain or anywhere in the Old World was in North America very much a confirmation of experience. More than a century of salutary neglect by Britain had provided to several generations of colonials the opportunity for experimentation in self-government and a degree of freedom from societal constraint not experienced in the Old World for thousands of years. Although those colonies under British domination traced their origins to the early seventeenth century, European expansion in the New World occurred very slowly and during a period of constant warfare between the emerging maritime states. By the mid-eighteenth century, however, Spanish military power had collapsed under the weight of internal corruption, leaving a gap destined to be filled by Britain.

As North America became increasingly important as a source of agricultural products, animal furs and other raw materials, each of the European powers made some effort to solidify control over existing territorial claims. During the early 1750s another in the long series of European wars spilled over into the Americas. French and British regulars, supported by colonial militia and indigenous tribes, waged a war that eventually left Britain in titular control over a vast North American empire.

During the early phase of the conflict, French forces dominated the struggle and seemed close to victory. A very real concern of the British and colonial leaders was the possibility that the Iroquois tribes, who had long served as a buffer between British and French interests, might be lost as allies. A congress was called together in Albany, New York to assure the Iroquois of Britain's ultimate victory and to promise the Iroquois they would share in any territorial gains. Seven of the thirteen colonies sent representatives, including Pennsylvania (represented by Benjamin Franklin). This congress was important to the future United States for several reasons. The seeds of self-government and cooperation between the colonies were being planted, although not yet ready to bear fruit. Benjamin Franklin, more than any other colonial leader, understood the advantages of forging a strong confederation; the success of the Iroquois League had not escaped his notice, and he was eager to replicate its virtues among the European-American colonials:

There is a writer of our day ... who has written an intriguing work entitled The Importance Of Gaining And Preserving The Friendship Of The Indians. I do not know Mr. Kennedy [the author] personally or what qualifications he has, but this is of little importance, for what he has to say makes good sense. He comments in detail on the strength of the League which has for centuries bound ... the Iroquois together in a common tie which no crisis, however grave, since its foundation has managed to disrupt. Further, this League does not infringe upon the rights of their individual tribes.

At the Albany congress, Franklin stepped forward with a dramatic proposal "that all of British America be federated under a single legislature and a president general to be appointed by the Crown." To his dismay, his fellow colonials either ignored or rejected his call for union. With French victories threatening the colonies and reclaiming the frontier, the British military was about to take control of the war -- ending the period of salutary neglect and setting the stage for an escalation of conflict between the colonials and their British governors.

In 1758, the elder William Pitt became Britain's Secretary of State. One of his first acts was to put the British forces in North America under the command of two young officers -- Jeffrey Amherst and James Wolfe. Soon, British fortunes in the field were reversed; by 1760 both Quebec and Montreal had fallen. The Peace of Paris in 1763 yielded all of Canada and more to Britain. The financial cost to Britain of supplying such a large military force had been extraordinary; and, at the end of the war Parliament looked upon Britain's distant colonial subjects as a logical source for tax revenue needed to reduce the nation's debt. Colonial reaction was to be as one would expect from individuals who felt no indebtedness to a government in which they had no real voice.

The British constitution of government virtually guaranteed that Parliament would be dominated by the most privileged and conservative class in British society. These men were, for the most part, staunch defenders of Britain's expansionist policies and the nation's mercantilist foundation. Their own aristocratic attachment to landed property also made them instinctively committed to the defense of the privilege they enjoyed. When the colonials' cry of no taxation without representation reached them, they immediately understood that "nothing was more likely to overthrow the privileged class [of England] than the application of this rare levelling principle in Great Britain." Britain's landed and merchant classes were unwilling to share either power or privilege with their colonial counterparts. As a consequence, the stage was set for growing conflict and inevitable rebellion.

Ironically, an often overlooked characteristic of mid-eighteenth century society in North America was that much of the wealth and most positions of authority were, as in Britain, inherited or restricted to an elite group of families. Many of the colonials at the center of resistance to the Navigation Acts and who were angered by the arrival of more and more Crown officials were members of the landed and merchant classes, were equally opposed to a general democracy and staunchly defended the system of positive law under which they enjoyed considerable privilege and advantage. They were certainly the most Anglophiled of the colonials. And yet, they became a serious threat to their British counterparts when they began to demand an equal voice in a government never designed to be either representative or democratic.

From the perspective of conservative colonials, their liberty was severely threatened by the imposition of unwarranted and unjust usurpations of power. Representation in the British Parliament became a trigger issue, and they demanded an end to the system of virtual representation, under which "even the richest man in America would be debarred from voting for the members of Parliament who would represent him." So long as the colonials had been ruled by salutary neglect there had been no reason for the colonials to assert their rights or challenge the British constitution. What British leaders failed to account for was the sense of equality felt by the colonials. The basis for this atmosphere of equality, observes historian Charles Andrews, arose out of colonial institutions:

... but in the existence in every colony of a miniature house of commons which was exercising full powers over legislation, membership, and finance, and claiming legislative equality with the highest legislative body of the realm. Such a claim affected the very constitution of the British empire itself, for it asserted that the empire was not a single state made up of a mother country and her dependencies, but rather a group of states equal in status, with coordinate legislatures and a common king.

By and large, the colonials enjoyed a far greater degree of liberty than did the general population of the British Isles. And, for those not inclined to yield to authority of any kind, there was the frontier and the wilderness beyond.

Benjamin Franklin was certainly among the vanguard of colonial leaders to publicly express dissatisfaction with the manner in which Parliament and the Crown dealt with colonial concerns. He was also among a small minority directly exposed to the school of French philosophes who "popularized not only a faith in humanity and an ideal of a free and equal society, but also specific economic and political doctrines" that mirrored what Franklin had learned by his own experience and reason. Although most of those who represented the colonial establishment desired nothing more than to protect their privileged status, these determined few dreamed of constructing a new society they hoped would secure widespread liberty and equality of opportunity (at least for the population of European-American males). Out of their debates arose a consensus around fundamental principles of representative government and a more complete doctrine of human rights. The extent to which the principles they espoused were compromised under the Constitution and positive law subsequently adopted continues to haunt us to this day.

In the debates that occurred during the crucial formative stage of the nation, there was great concern expressed by the leading participants over measures they believed would advance or thwart the cause of liberty. And yet, there was no real agreement on the full scope of what our liberties are and how they would best be secured and protected. John Adams, representing one point of view, believed that only a strong, national government could protect individual liberty. Conversely, Thomas Paine took the position that the greater the powers given to a national government the greater the risk of tyranny and oppression. Even Paine, however, feared external powers more than the police powers he felt were needed by a national government to maintain the sovereignty of the states. The colonials, ultimately victorious on the battlefield, were still seriously divided over important questions of principle. Yet they somehow had to come together in order to protect themselves from very real external threats.

These individuals had only their powers to reason and their own experience to point the way. No nation had yet realized self-government under institutions of representative democracy. To some, liberty was primarily the right or freedom to accumulate property (landed and otherwise), to engage in business and commerce without interference by the State and to be freed from the unjust burden of heavy taxation. Others thought of liberty in terms of civil rights (e.g., the right to vote, to hold elected and appointed offices, to a trial by jury, etc.). Democracy as a cornerstone of their societal structure was at once instinctive to the communitarian aspects of the frontier and feared by those holding entrenched power along the coast and inland waterways. In a world everywhere dominated by the few, the colonials were logically more concerned with majority rule than minority rights. They held varying opinions about religious freedom and the separation of Church and State; however, all but a few (of which Paine was the most notorious for his deistic attack on organized religion in The Age Of Reason) thought of the nation as Christian, and Protestant. Individuals belonging to other sects would remain as outsiders, sometimes persecuted and often taunted. So long as the frontier existed, nonconformists could escape the majority and establish their own communities and set up their own governments. No one anticipated the rapid increase in population or the diversity of those who would come from abroad. Jefferson, almost alone, knew there would come a time when his vision of a nation of yeoman farmers would fade, but he was shocked by the appearance of a large propertyless class within his own lifetime.

Under the British constitution and by virtue of tradition, the individual was by definition a subject of the Crown. Rights against the government were awarded based primarily on aristocratic privilege, titleholdings acquired during the centuries of civil strife, or (in a growing number of instances) influence obtained by financiers and businessmen. Those who enjoyed and benefitted from political and economic privilege were sure they were deserving of their protected status, and just as sure that the propertyless were not deserving of very much protection under the law. Within the colonial elite, the same attitudes directed that while a somewhat united resistance to a distant King and Parliament might be forged, only a very few would step beyond the bounds of unenlightened self-interest. The quest for independence attacked the British government on the basis of principles advanced by Old World philosophers for more than a century. The people who inhabited the colonies and came forward to fight the British were instinctively drawn by reason to principles that simultaneously seemed to protect property while securing civil liberties.

Another aspect of the colonial struggle was the strange position of Britain's military force having to assume the dual role of defending British property interests while fighting the rebels. Many colonials, remaining loyal to the empire, relied on the British army for securing of their person and property. Thus, the war presented the strange dichotomy of two opposing military forces (each directed by socio-politically conservative, and generally elitist, leadership groups) attempting to prevent the destruction of the colonial stock of physical wealth while fighting over who would govern and control this vast territory. Neither group was prepared for the degree of change that was soon to occur; they (and their descendants) would continue to hold their conservative aspirations for a very long time. In the United States this ongoing conservatism would take form in an ongoing opposition to democratization of the republic.PPP What conservative colonials failed to realize until too late, however, was that the majority of their countrymen entertained a vision of an independence from the British empire very different from their own. As one historian has concluded:

The American Revolution was more than simply a struggle to free the colonies from English control; it was more than a civil war between Whigs and Tories. It became as well a movement to obtain certain democratic rights for the American people: emancipation of slaves, humane penal codes, greater freedom of worship, termination of aristocracy in landholding, expanded suffrage, and broader educational opportunities.

Once committed to the rebellion, most Americans expected victory to produce greater equality of opportunity as well as personal freedom. By 1776 the momentum of both rhetoric and action set the stage for a radical departure from the status quo or a return to salutary neglect. Or, as historian Bernard Bailyn writes: "[E]verywhere there were discussions of the ideal nature of government; everywhere principles of politics were examined, institutions weighed, and practices considered."

More than most others of his position in colonial society, Thomas Jefferson anticipated the rising tide of democracy and greater demand for equality of opportunity. In his writing and direct involvement in the debate he struggled to incorporate an egalitarian spirit into what he viewed as a just system of law. For example, while limiting political participation to his own race and gender, Jefferson's proposals to guarantee each White, adult male sufficient land on which to support himself and his family suggests that he was more aware than most of the relationship between just socio-political arrangements and the need to grant all citizens at least a minimum degree of access to the earth.

In our own time we have a tendency to view the written Constitution drafted by the Framers and adopted by the States as the standard against which just socio-political arrangements are pursued. Those who both forged and criticized the Constitution during the late eighteenth century were more "conscious rather of its defects than its merits." Along these lines, Jefferson's advice to his countrymen proved to be rather prophetic:

The time for fixing every essential right on a legal basis is while our rulers are honest and ourselves united. From the conclusion of [the Revolution] we shall be going down hill. It will not then be necessary to resort every movement to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money. ...The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier.

On the one hand, Jefferson recognized the necessity for a uniform legal structure to nourish and preserve liberties won with bloodshed; yet (particularly in private correspondence) he expressed an ever-growing concern over the future of the new nation:

The real friends of the constitution in its federal form, if they wish it to be immortal, should be attentive by amendments to make it keep pace with the advance of the age in science and experience. Instead of this, the European governments have resisted reformation, until the people, seeing no other resource, undertake it themselves by force, their only weapon, and work it out through blood, desolation, and long-continued anarchy.

While supporting the constitutional initiative, Jefferson's writing implies an already developed pessimism. He seemed to sense that the window of opportunity for radical change created by the rebellion had by the late 1780s been closed. The conservative elements in the nation already controlled most of the best agricultural land, physical wealth, trading centers and financial reserves; they were not about to allow the winning of independence from Britain to simultaneously accomplish the destruction of their privileged positions. Although, as Jackson Turner Main has written, "[b]y European standards there was ... no upper class at all, since there was no hereditary aristocracy," the continuation of traditional land tenure law favored the inheritance and accumulation of landed property. Thus, in practical terms, the increase in population after the rebellion facilitated the creation of a small but very wealthy landed elite. Many lost their personal fortunes in the great land speculations that accompanied opening of the interior, but those who gained control over fertile acres with good access to transportation routes could not help but to accrue tremendous benefit over time. By comparison, however, Americans had much to feel positive about:

The American of the 1780s had reason, as he viewed his society, for some cautious optimism. Classes remained, to be sure, and he might note with alarm the concentration of wealth and the growing number of poor, but the Revolution had made great changes, and westward the land was bright.

Westward the land (or, more accurately, the prospect to exploit the land) was bright indeed, and countless thousands would soon leave what experience told them was a corrupted eastern seaboard for the virgin and unsettled lands of the west. By the beginning of the nineteenth century, and though still thinly populated and newly independent, the majority of citizens looked not to the Constitution nor their leaders to protect their liberty; rather, they looked to the frontier. From the very beginning of the nation, in fact, our forefathers seemed to instinctively realize that as great as the differences were from those of the Old World they were not sufficient to protect the republic from internal strife and representative democracy from corruption.

We know that the experience of living in the United States has for countless millions fallen far short of the promise contained in the Declaration of Independence. Why this has been so has been debated endlessly during the life of our nation. We have periodically amended our Constitution, restructured and reorganized our political institutions and several times transformed the engine of our economic system. Still, problems of inequality of opportunity remain; still, the concentration of titleholdings in nature and the ownership of production grows; still, the just society remains an elusive goal of only some, while others work to maintain the socio-political arrangements and institutions that have for so long provided them an easy living. I assert that Franklin and Paine, particularly (and Jefferson, in most respects), knew in their own time the changes that justice required. Their writings reveal an awareness and acceptance of measures that would bring equal access to nature to all members of society and thereby secure a state of true liberty governed by the constraints of just principles. Among the writings of Franklin, Paine and others can be found a clear presentation of the principles upon which just socio-political arrangements must be forged.

Justice and privilege cannot co-exist; they are mutually exclusive and privilege thrives at the expense of justice. Moreover, there is no greater privilege at work in society than a system of titleholdings to nature that sanctions the private appropriation of the exchange value of nature. Wherever this occurs the result is a concentration of nature and wealth into the hands of a privileged few. What follows is a presentation of the socio-political philosophy and system of political economy espoused by those few who cast aside conventional wisdom in a quest for truth and justice.

Part 3 The Wealth of Nations Belongs to its Producers. The Exchange Value of Nature Belongs to ALL!

The period following the American Revolution was characterized by a rapid growth in commerce and an expansion of trade into external markets. " The commercialization of society in itself," writes historian Drew McCoy, "marked the birth of a distinctly modern order that represented a dramatic and dislocating break with the past." No single individual was more responsible for analyzing and exploring the socio-political dynamics at work at the time than was the Scottish philosopher and political economist Adam Smith. His ground breaking work, The Wealth Of Nations, attempted to establish a scientific framework for the investigation into human behavior. The approach he pioneered endured and expanded until the late nineteenth century, when specialization appeared within the professional ranks of the social scientist. For more than a century, however, political economy dominated intellectual investigations into the affairs of the individual within society. And, Adam Smith was acknowledged as the master of this new discipline. There is, in fact, no arena in the relations between man and nature, man and man, or between man and the State, that he did not touch upon.

Smith is today repeatedly represented as the great defender of laissez-faire capitalism by those who wish to protect private contractual arrangements from interference by the State, in part on the grounds that they are inherently voluntary and that regulations or controls by the State are inherently coercive. From this perspective, Smith's explorations into the operation of markets and the definition of what laissez-faire means has been substantially misrepresented. The Wealth Of Nations is both a philosophical and an historical study of the ascent of man within society. As all scientists strive to do, Smith attempted to show cause and effect relationships while developing at the same time the fundamental principles of his science, political economy. To the great misfortune of mankind, division of political economy into independent and specialized disciplines late in the nineteenth century dealt a severe blow to the achievements of Smith and his successors.

The promotion of what are presented as laissez-faire approaches to public policy is an important example of just how far we have drifted from the principles of political economy as developed by Smith and his contemporaries in France, from whom the full term, laissez-faire, laissez-aller, and the discussion of its meaning arose. For much of the nineteenth century the full doctrine remained obscure and unattended. Henry George made an attempt in the late nineteenth century to resurrect a full discussion of the principles underlying this doctrine and translated the French into English as "[c]lear the ways and let things alone." From his reading of a wide range of tracts on political economy, George concluded that the successors to Smith had "emasculated and perverted" the doctrine from its full and scientific importance. The essence of what the French political economists were espousing, wrote George, was appropriately described by the English phrase, "a fair field and no favor." To clear the ways requires the removal of all privilege and monopolistic licenses, the absence of which secures a fair field and no favor. This is the key to competitive markets and is essential to Smith's anti-mercantilist doctrine. Where human behavior is concerned, one must ask how many entrepreneurs (a group that includes both producers, servicers and speculators) have ever been eager to assume the risks of markets free of privilege and subject to often harsh competitive pressures? Smith, for one, and Henry George as well, understood that whenever possible individuals and groups would attempt to use their influence and the power of the State to secure for themselves protectionist measures of enormous benefit to themselves.

While the essence of scientific investigation is that of a discipline driven by an objective quest for truth, the practice of political economy (and its successor disciplines) has with incredible consistency been subverted by vested interest and prejudicial analysis. Even Smith proved susceptible to the pressures of his position in eighteenth century British society and went to great lengths to defend the privileges attached to landownership under British constitutional law. Yet his influence over the intellectual elite of North America was significant. In many instances Smith could be used as an authority to support conclusions they had come to based on their own reasoning and observations. In this way, Smith's work became a standard against which others conducted their own investigations by subjecting Smith's principles to scientific scrutiny. In the political arena, Smith also found important, if only partial, acceptance for his specific public policy recommendations, so long as they could be implemented within the constraints of existing socio-political arrangements and institutions. Smith's nineteenth century successors, then, can be credited with the introduction of incrementalism as the pattern by which law and policies were altered to advance or thwart various objectives. The issues of direct concern to this essay, however, relate to Smith's exploration into the origin and expansion of socio-political arrangements and institutions themselves, particularly those that created property rights in nature by means of titleholdings. Integral to an understanding of Smith's conclusions is his conception of what constituted societal justice.

Chapter VIII of The Wealth Of Nations deals with "The Wages Of Labour" and begins with an exceptionally straightforward presentation of how groups evolve and adopt hierarchical societal structures. After giving us this insight into history, however, he applies a value judgment that had important consequences for the advance of political economy as a scientific endeavor. First, Smith as historian:

In that original state of things, which precedes both the appropriation of land and the accumulation of stock, the whole produce of labour belongs to the labourer. He has neither landlord nor master to share with him.

Had this state continued, the wages of labour would have augmented with all those improvements in its productive powers, to which the division of labour gives occasion. All things would have gradually become cheaper. They would have been produced by a smaller quantity of labour; and as the commodities produced by equal quantities of labour would naturally in this state of things be exchanged for one another, they would have been purchased likewise with the produce of a smaller quantity.

What, one legitimately asks, could be more just than that the wealth produced by one's own labor is and should be the private property of the producer? That history had not so unfolded and that titleholdings to nature granted and protected by societal hierarchies had allowed the idle to confiscate wealth from the producer was uncharacteristically glossed over by Smith. His treatment of this circumstance suggests a reluctance to follow his own reasoning to a logical conclusion. He was, of course, writing about a subject that had unsettling ramifications for those who by virtue of privilege had gained and held both political power and material wealth:

But this original state of things, in which the labourer enjoyed the whole produce of his own labour, could not last beyond the first introduction of the appropriation of land and the accumulation of stock. It was at an end, therefore, long before the most considerable improvements were made in the productive powers of labour, and it would be to no purpose to trace further what might have been its effects upon the recompence of wages of labour.

As soon as land becomes private property, the landlord demands a share of almost all the produce which the labourer can either raise, or collect from it. His rent makes the first deduction from the produce of the labour which is employed upon land.

This "first deduction" of "rent" stems from a power relationship existing between the producer and the titleholder, backed to a greater or lesser degree by the police power of the State, that both sanctions the private appropriation of nature as the property of the individual while abrogating the principle that the product of labor belongs to the laborer.

Political economy also takes note of the fact that nature has a zero production cost in terms of human labor, meaning that the existence of the earth in its natural state precedes and is independent of the presence of mankind. The earth has been here to facilitate our ascent from our first appearance, and access to nature demands from individuals no inherent exchange of existing or future production. In philosophical terms, the access to nature is both essential to our survival and an equal birthright of all individuals. Manmade socio-political arrangements and institutions (normally imposed on the many by the few, but in the case of existing social-democracies, incrementally acceded to under majority rule) establish claims of sovereignty over particular portions of the earth, protected by militarism, which is then distributed under systems of positive law in the form of titleholdings, licenses and other forms of unnatural and artificial property rights. A decade before the appearance of The Wealth Of Nations, the French political economist, Ann Robert Jacques Turgot, opened the door for Smith and for writers driven by more egalitarian motives:

[T]he land filled up, and was more and more cleared. The best lands at length came to be all occupied. There remained for the last comers only the sterile soils rejected by the first. But in the end all land found its master, and those who could not have properties had at first no other resource than that of exchanging the labour of their arms, in the employments of the "stipendiary" class, for the superfluous portion of the crops of the cultivating Proprietor.

Smith is aware of this anomaly, and in Chapter I of Book V he makes an attempt to rationalize these historical developments:

Among nations of hunters, as there is scarce any property ... so there is seldom any established magistrate or any regular administration of justice. Men who have no property can injure one another only in their persons or reputations. ...It is otherwise with the injuries to property. The benefit of the person who does the injury is often equal to the loss of him who suffers it. ... But avarice and ambition in the rich, in the poor the hatred of labour and the love of present ease and enjoyment, are the passions which prompt to invade property, passions much more steady in their operation, and much more universal in their influence. ... It is only under the shelter of the civil magistrate [i.e., the State] that the owner of that valuable property, which [and here is where Smith fails in the consistency of his logic by ignoring history] is acquired by the labour of many years, or perhaps of many successive generations, can sleep a single night in security. He is at all times surrounded by unknown enemies, whom, though he never provoked, he can never appease, and from whose injustice he can be protected only by the powerful arm of the civil magistrate continually held up to chastise it.

In what can only be described as Smith's greatest contradiction of principle, he begins with a natural rights definition of property as the wealth returned to those who apply their labor to nature (i.e., which, in political economy, was given the one identifying term of land). He then goes on to defend the redistribution of property from its legitimate owners, the producers, to non-producers, those who merely have gained titleholdings to land. That the control of land had been repeatedly gained either by warfare or other means of displacing existing occupants was not merely ignored by Smith; his position strongly supported the view that mere possession of a titleholding was a form of labor. What, then, of the great landed estates that by loyalty to a given monarch had come into existence by edict, or the enclosure of the commons that displaced communitarian use with private control, or the division of Ireland by Oliver Cromwell among his generals as the spoils of victory? Smith merely indicts the landless poor for their "hatred of labour" without acknowledging the misery and oppression under which they live and with which absentee landlords or despots confiscated as rent an ever greater portion of what labor was able to produce. What, Smith might have asked, is the effect on the productiveness of labor when nearly all that one's labor yields is confiscated by others? One is directly to conclude that Smith was either guilty of intellectual dishonesty or a remarkable lapse in his ability to use his own scientific reasoning.

Other than Smith we have the doctrines of John Locke to guide us, although Locke is not widely credited by posterity for his own work in political economy. As a socio-political philosopher, however, he gave considerable attention to many of the same intellectual questions as did Smith; equally important, he wrote very much in the spirit of an antagonist and against the status quo. His work was certainly instructive for Smith and other eighteenth century political economists and remains so today. From Locke we are provided with two fundamental cornerstones of a human rights doctrine. In the first instance, he writes:

God hath given the world to men in common... Yet every man has a property in his own person. The labor of his body and the work of his hands are properly his. ...

Of the relationship between man and nature and justice, Locke holds that "[a]s much land as a man tills, plants, improves, cultivates, and can use the produce of, so much is his property." This is far different from Smith's strained effort to attach to Britain's (and other States) systems of land tenure that provided a privileged few with vast and unused or underutilized estates at the expense of displaced majorities.

A practical attempt to incorporate Locke's principles of land tenure had already been advanced by William Penn in North America under his original plan for the settlement of land granted to him by England's sovereign king. In a document written by Penn in 1681, he required that "[e]very man shall be bound to plant, or man, his land within three years after survey, or else other applicants may be settled thereon." By design, only those who actually took occupancy and produced wealth on the land would have their titleholding sanctioned. Penn also went considerably beyond Locke in suggesting that titleholdings should be equated to a leasehold granted by society and, therefore, carried an obligation by society to collect the rental value of land for public expenditures. As proposed by Penn, this measure promised a remarkable result:

If all men were so far tenants to the public that the superfluities of gain and expense were applied to the exigencies thereof, it would put an end to taxes, leave not a beggar, and make the greatest bank for national trade in Europe.

Penn's vision of a society built on the above arrangements and institutions was either unknown to Smith or dispatched because of the direct threat Penn's ideas had on entrenched privilege. The torch ignited by Penn was to receive attention in a serious way among the American revolutionaries only from Thomas Paine, and only after the Constitution had been adopted by the States. By then, the time had passed when the interests of the people as a whole, and the interests of future generations, might have overturned all the evils of land tenure as practiced in the Old World and carried into the New. Sounding very much like Penn, Paine had written in 1795:

Man did not make the earth, and, though he had a natural right to occupy it he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land office, from whence title deeds should issue. ...it is the value of the improvement only, and not the earth itself that is individual property.

And, as had William Penn and as would Henry George, Paine declared that justice required that "[e]very propriety of cultivated land owes to the community a ground rent ... for the land which he holds; and it is from this ground rent that the fund" for Paine's system of social welfare was to come. Paine reasoned that "improvements" derived from the labor of individuals (assisted by the use of physical capital also produced by labor) represented natural property to the individual. The payment of "ground rents" by the individual to society was, on the other hand, just compensation to society for the privilege of sole access and protection of whatever natural property accrued to one's labor.

With some degree of certainly, one can conclude that had Thomas Jefferson rather than Tom Paine advanced this plan for the collection of ground rent, its incorporation into the Constitution and system of law would have been given serious consideration. Unfortunately, Tom Paine made the very great tactical error of publishing his deistic religious convictions in The Age Of Reason, a work that advocated freedom of conscience far beyond what the overwhelming majority of people anywhere could accept. Paine was in this and other respects far ahead of conventional wisdom. Although he returned to the United States during Jefferson's rise to power, his influence on Jefferson and on the republican elite disappeared. Jefferson had supported a measure that would have permitted the federal government to levy a land tax to be collected by the States; however, the proposal never made it to the floor at the Constitutional convention. At an earlier time, when the sentiments of the nation were, as Jefferson suggested, more deeply impressed upon the founding fathers than on the framers of the Constitution, the States provided under Article VIII of their Articles of Confederation that:

All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the value of all land within each state. ...

Jefferson's own notes indicate that the substance of this Article was advanced by New Jersey's delegate, Dr. John Witherspoon. Witherspoon, writes Jefferson, "was of the opinion that the value of lands and houses was the best estimate of the wealth of a nation, and that it was practicable to obtain such a valuation." The illustrious doctor was on the right track, but his instincts were not, apparently, supported by a learned appreciation of the principles of political economy or he would have recognized the taxation of the value of houses as a form of confiscation by the State of wealth. Yet at the time those who owned large and valuable houses were also generally those who had acquired their personal fortunes by not having to contribute the rental value of their landed estates to the common treasury. Passage of the Constitution without provision for collecting economic rent proved Benjamin Franklin correct in his assertion that the landed would tirelessly and forcefully resist this measure.

One important ally to the interests of the landed in nineteenth century America was a popular sense that the extent of land available for the taking was unbounded. For several generations of migrants and new arrivals from the Old World the North American continent offered as much hope as real opportunity. Few asked what conditions would arise once the continent was fully settled and the ownership of land wholly under the control of government and private interests. As is often the case, the most objective conclusions are reached by distant observers. After a rather extensive tour of the United States in the 1830s, the French official Alexis De Tocqueville recorded that:

In America there are properly speaking, no farming tenants; every man owns the ground he tills. It must be admitted that democratic laws tend greatly to increase the number of landowners and to diminish that of farming tenants. Yet what takes place in the United States is much less attributable to the institutions of the country than to the country itself. In America land is cheap and anyone may easily become a landowner; its returns are small and its produce cannot well be divided between a landowner and a farmer.

Between the time when Paine attempted to attract public attention to questions of agrarian justice and concerns with questions of land reform by Marxists and Socialists, the American journalist and activist Henry George resurrected Paine's populist campaign. By temperament and personal experience, George proved to be more than capable of carrying the torch. On the one hand he made an extraordinary effort to substantiate his instincts with scientific reasoning and observation. Self-taught and often in conflict with university-trained professors, George became known as the last of the Smithian line of classical political economists. At the same time thousands of reform-minded individuals responded to his message and elevated him to the head of a global political movement. He also became one of history's great public speakers.

As the nineteenth century's revolution in technology turned Britain, the United States, and much of Northern Europe into industrial empires, mercantilism was vigorously attacked by individualists who clamored for free trade and what they construed to be laissez-faire policies on the part of government toward business activity. Others demanded protective tariffs against foreign goods and the freedom at home to form monopolistic trusts in finance, transportation, manufacturing and the extractive industries. In this environment, Henry George emerged from California in the 1880s to champion the causes of agrarian justice and free trade in a manner that struck anew at privilege in all its forms as the enemy of liberty and republican virtue. George conveyed in powerful terms to Americans, and others, that the democratic revolution had faltered, and he told people in specific terms what yet had to be done:

Free trade means free production. Now fully to free production it is necessary not only to remove all taxes on production, but also to remove all other restrictions on production. True free trade, in short, requires that the active factor of production, Labor, shall have free access to the passive factor of production, Land. To secure this all monopoly of land must be broken up, and the equal right of all to the use of the natural elements must be secured by the treatment of the land as the common property in usufruct of the whole people.

His choice of words was important to Americans familiar with republican rhetoric; Jefferson had used virtually the same language in declaring that the land belonged to no single generation. After almost two decades of writing, lecturing and campaigning, the movement centered around Henry George had become world-wide, although the advances he made to the scientific study of political economy were largely ignored by the new generation of social scientists. After his death in 1897 the torch he carried gradually fell to the ground where it rested, until the last decade or so, as a burning ember in danger of going out altogether.

Today there is a growing realization that our system of land tenure has its roots in the same body of property law that produced a still-existing privileged class of landowners in Britain. The enlightened efforts of some of our founding fathers were able to remove only a part of that system. Just socio-political arrangements in our own republic will remain an elusive goal until we go all the way to remedy the remaining structural defects. Labor and capital must be freed to produce. Access to nature must be maximized. And the economic value of nature must be collected in full to provide for the public and private goods that contribute to a human existence characterized by dignity.

We have over the last two centuries become more productive, more adept at producing more from less. As a result, although the modern landowner (often a corporation or other form of industrial-landlord) commands a very large portion of production as rent, or escapes paying rent to society as a titleholder, a large number of people in our society do live reasonably well. As the concentration of ownership continues to increase, however, we face the challenge of having to make tremendous gains in productivity just to maintain our current standard of well-being. The losses in permanent employment or above-subsistence income by so many Americans of all ethnic backgrounds during the last decade is a clear indication of the consequences of failing to socialize the value of nature. Just think of how different things would be had our forefathers listened to William Penn, or Thomas Paine, or Henry George. Justice, is not yet secured.