Supreme Court: What Locke Actually Said

n the last issue I talked about supposedly "activist" judges, defined in three ways: 1) ignoring the original text of the Constitution; 2) overriding the decisions of Congress, the president and the states; 3) disregarding precedents. Activist judges, so-called, are usually thought to be liberal, but there is one group of activist judges, in the third sense listed, that is decidedly conservative. Bush's second appointment to the Supreme Court may come from this group.
These judges, as well as the scholars associated with them, are interested in economic issues. In particular they assert the absolute right to property, i.e. the right of property owners to use their property as they see fit, without interference from the government. In other words, they put property rights on the same plane as civil rights: just as we have an absolute right to act freely as long as we don't interfere with others, this group says, so we have an absolute right to use our property as we see fit.
This group sees absolute property rights as prescribed in the Constitution, and they see themselves as rescuing the Constitution from the corruption it has suffered. (Thus they are definitely not "activist" in the first sense mentioned above.) So they sometimes refer to themselves as the "Constitution in Exile" movement. For a good rundown, read Jeffrey Rosen's article in the New York Times Magazine of April 17, 2005, especially page 48. Cass R. Sunstein's op-ed column in the Plain Dealer of July 13 also alludes to this movement.
This is serious business, because the believers in absolute economic rights would like to strike down the New Deal (yes, strike down the New Deal!) and to repeal many government regulatory programs as violations of property rights. They hold that the Supreme Court took a wrong turn - an unconstitutional turn - in agreeing to New Deal legislation and all that followed.
How do these theorists justify their extremist theory? It seems they would have a hard time of it, for their view of justice and the proper role of government is squarely opposed to the national consensus (as shown by the overwhelming support for Social Security, to give one example), and in my opinion is opposed to any civilized viewpoint.
One of their strategies, therefore, is to overlook the national consensus in favor of history and philosophy. In particular, they appeal to the 17th-century English philosopher John Locke, who is famous for proclaiming the innate (inalienable) rights to Life, Liberty and Property. This is of course the model for Thomas Jefferson's "Life, Liberty and the Pursuit of Happiness," and Locke's views are often looked on as the main source for the Declaration of Independence. Therefore any viewpoint that follows from Locke can claim a certain authenticity and command a great deal of prestige.
Locke makes a moral claim (or claim of justice). He says that individuals have innate rights to life, liberty and property, and that any government infringing on these rights or failing to protect them is unjust. This is what the believers in absolute economic rights appeal to.
So let's take a look at what John Locke actually said. His writings on the subject appear in his Second Treatise on Government, Chapter Five.
Locke bases his theory on the supposition of a "State of Nature," that is, a situation (real or imagined) prior to the formation of any government. In the State of Nature, every person has two innate, God-given rights: the right to exist (Life), and the right to act freely (Liberty). What about the right to property? This must be acquired through a process of applying one's labor to raw nature. Here are Locke's relevant words:

". . . I shall endeavor to show how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners." (para. 25)
. . . . every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature has placed it in, it has by this labor something annexed to it that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough and as good left in common for others." (para. 27)

Locke is saying, in other words, that a person's body is his by right (based on his right to life and liberty) and what the person gains by using his own body (what he has "mixed his labor with") is an extension of his body. When a person exerts his bodily labor on what was originally common property, therefore, he carves something out of the public (common) realm that is his alone and his by right - it is his property by the same right that he has to his own body ("person"). The government does not confer this right to property, just as it does not confer the right to life and liberty. Rather, the government has an obligation to protect the right to property and to refrain from interfering with it.
In a further passage, Locke says that having acquired a stock of goods through labor, a person may voluntarily trade with others, and whatever he acquires through such voluntary exchange is his by innate right also.
There are two key points in Locke's explanation:
1) A person acquires the initial right to a piece of property by creating it through exertion of his own labor on the undeveloped and unclaimed wilderness (for example, by clearing and improving a tract of land to make a farm).
2) The person has a right to this property only on condition that "there is enough and as good left in common for others" - i.e., that he doesn't deprive anyone else of an equal chance to appropriate unclaimed land.
In other words, Locke paints a picture of a frontier situation, in which a person may go out into the wilderness and through individual effort carve out a piece of land. In this situation, the piece of land that the individual has carved out is an extension of himself, so he has as much right to it as he has to his own hand or leg.
This picture may have been true of England in Locke's time (and it certainly was true of some parts of America when the Constitution was written), but it clearly and definitely is not true of any modern industrial society such as the United States. Consider any manufacturing or service organization. It is a complex process in which the efforts of a multitude of people are interwoven, from the executives to white collar workers to manual workers. Their efforts all blend together to achieve the final product; it is absolutely impossible to identify the product of one person's labors, because there is no product produced by only one person's labors. Even farmers or miners (whose situation is probably closest to the one Locke pictures) depend on equipment and transportation provided by others.
Furthermore, since we compete with one another, and since there are no longer unlimited resources, we cannot say that our own efforts to acquire property leave others with just as much as before.
So Locke's essential presuppositions simply don't hold true in our society. His argument is groundless, in the present day, and any appeal to Locke as a justification for absolute economic rights is fraudulent.
The subject at hand is distributive justice - the question as to how, by what formula, the material goods of society are to be distributed among its members. This is a large subject that has been controversial for many centuries. I can't begin to provide an answer, except to say that the supposition of absolute economic rights is not the answer. And a few remarks on a basic level may serve as a beginning::
1) Don't confuse the "is" with the "ought." Don't confuse factual truths with statements of morality or justice. For example, it is probably true that free-market capitalism is the system most productive of total output, but that doesn't imply that capitalism is necessarily the most just system. On the other hand, our conclusions about justice must be tempered by the hard fact that we would be killing the goose that lays the golden egg if we reject a system that is not completely just but produces abundantly.
2) Be careful about calculating the "contribution" a person makes as the basis for the income he or she is to receive. Consider the CEO of a corporation and a machinist who helps turn out the corporation's product. The CEO of course is awarded more. Do you want to say it's because he or she contributes more than the machinist? Why? Because the machinist couldn't do his or her work without the CEO? But neither could the CEO do his or her work without the machinist (or the group of machinists). Is it because there are many machinists but only one CEO? Why is that justification for paying the CEO more? (Suppose there are many machinists but only one janitor - is that a reason for paying the janitor more?) Is it because CEOs are worth more on the market? That is a fact, to be sure, but can you claim it as a moral justification, without confusing the "is" with the "ought?"
3) Perhaps the most widely accepted principle of distributive justice in our society is equality of opportunity. Opportunity is the ability to achieve a certain result through one's effort. Equal opportunity therefore means that we achieve equal results through equal efforts. In the United States we don't come anywhere near achieving equality of opportunity. (The CEO, the machinist and the janitor may put forth roughly equal efforts, but the resulting incomes are far from equal.) Indeed we probably couldn't come close to complete equality of opportunity without sacrificing the capitalist-free-market golden goose. But we can get closer than we are now, at least by compensating for the inequalities of income through political measures such as universal health care, Earned Income Tax Credit and the like.
There is much to think about here, and little hope of ever coming up with a universally acceptable answer. But let's at least reject simplistic and bogus solutions such as the theory of absolute economic rights. Let's at least reject solutions that see our society not as a joint enterprise but rather as a sort of jungle in which the economically powerful prosper and everyone else scrambles to get what they can.
Read More on Minding the Issues
Volume 1, Issue 6, Posted 04.16 AM / 09th September 2005.