“Extreme” abortion laws

You know the story: Alabama, Georgia, Missouri and other states are competing for the strictest anti-abortion laws in recent memory. “Heartbeat bills” are rising, and millennials and younger that grew up only knowing the safety of Roe v. Wade fear its inevitable overturn. Pelosi clarifies that one does not have to be pro-choice to run Democrat. The pot of left-of-center young adults that gradually bubbles socialist renounces centrism for failing to fight this reinvigorated war on women and reproductive rights. The leftists want to kill more children, and face no timely restrictions at all on turning their womb into a uterine death chamber. Also, this is all Trump’s fault.

Or so everyone is saying about each other.

Of all the hot issues where the principle of charity is ceremoniously burnt alive in public theater, abortion stands out as the most sulfuric: “old white Christian men” want to “control women’s bodies” and make them “sexually subservient to the law” by “setting us centuries back”; alternatively, “irresponsible juveniles” want to “have sex without any consequences” by getting “abortion on-demand” and “killing babies at will.” In reality, the pro-life camp is a wide demographic pool, male and female, theist and atheist, old and young, white and not, that doesn’t give a fuck about what you do — in fact, they really seem to just not want to hear about it — as long as you’re not killing children (in their eyes), and the pro-choice people are motivated, in their most vocal advocates, by stories not of free love and reckless abandon but horror, shame, pain, trauma over their experiences with abortion in its current shackles… (in their eyes).

People are good, mostly, but the most antagonistic and moronic take the spotlight instead of the good faith representatives. Abortion is a debate between two people that hate each other but don’t have a shared language to reconcile their differences. And like the rest of political warfare, the fractures build new pits in the bipartisan schism; if abortion is Ares, then racism and sexism are its Phobos and Deimos.

Although I lean heavily on the side of choice, my peers expose their bubble by labeling some of the recent proposed litigation as “extreme.” None of it is extreme with sympathy to the opposing worldview. To the other side, we, the people with “the right ideas,” have had it extremely in our favor for a long time.

Texas recently introduced a bill transitively allowing the death penalty for women who get abortions (by allowing the conviction of homicide, which can be issued the death penalty in Texas). The pro-choice reaction to this is disbelief, a harbinger of a new Dark Ages, domestic terrorism by conservatives: extremism. I had a fruitful conservation on Facebook about the fringeness of this belief. It’s not fringe of a position at all, accepting basic tenets of the pro-life philosophy.

Anti-abortionists consider abortion to be murder, and thus their reaction to abortion should, logically, be consistent with their reaction to murder. This should be true for moral and legal questions both before and after abortion. Opposition to the death penalty is mostly about jurisprudence — it takes in many factors that supervene on a million things without the slightest relation to abortion — but moral equivalencies are not.

So, IF abortion is homicide, and IF homicides can be justifiably prevented by killing the would-be murderer, THEN abortions can be justifiably prevented by killing the abortion doctor or mother to intervene.

Further, IF abortion is homicide, and IF homicides are morally punishable with the death penalty after due process, THEN abortions are morally punishable with the death penalty in the court of law.

It’s not necessary to be pro-life and require the death penalty or self-defensive killing when it comes to abortion, but it is consistent with other basic premises that many people hold. It is not extremist.

Now, there can be lots of exceptions to the conditional premises above (killing to prevent a homicide might not always be justified, etc.), but I sincerely doubt pro-lifers accept the common ones — e.g., if I wanted to kill my vegetative spouse because I don’t feel like I could take care of her, that won’t earn me any sympathies and, consistently, should not in the analogous case of abortion (accepting the premises above…).

More pro-life people should, therefore, argue the morality of murdering abortion doctors and would-be mothers; they should also see the death penalty as reasonable if they think the death penalty is already reasonable in the case of mens rea homicide. Abortion, if murder, fits homicidal criteria like premeditation, etc. If someone who is pro-life disagrees that he needs to take this stance because the question of abortion is so socially conflicted, then it probably means he himself is actually conflicted.

Posting thoughts on abortion should be more like encouraging discussion and less like summoning Cenobites. The “extremist” pro-life position outlined above that has started to surface is not “extremist” at all; it’s part of a consistent Weltanschauung completely different than mine own. The more accepted view, the Roe v. Wade decision, appears extremist to the others.

We should all seek to understand our interlocutors as fellow pilgrims on the same journey toward truth, all of us stuck applying archaic moral and scientific categories onto new problems of autonomy, all of us quietly trying to pass a conch while the megaphone of Twitter opinion screams on. Maybe the above conclusions place pro-life into a reductio, or maybe it prompts pro-choice into a more “extreme” logical position to counter. Either way, we’d be better for it, seeing each others’ views as parts of a foreign and strange, but concrete, whole, instead of the fevered, conspiratorial plans of a hostile enemy.

Liberalism & Jewish Emancipation

Crossposted at Liberal Currents

How did religious freedom first emerge? This is the theme of Persecution & Toleration (CUP, 2019). Here I focus on one part of this question: how did Jews obtain civic rights?

Antisemitism has a long history in Europe. Elsewhere, I discussed its institutional foundations in the Middle Ages. But even as pogroms and antisemitic violence waned, disabilities and restrictions on Jews remained in place. It was not until the 19th century that most were removed in Western European countries. In Persecution and Toleration, Noel Johnson and I argue that this discrimination reflected the political economy of fragile states. Religious freedom was impossible in weak states reliant on religious legitimacy. But this doesn’t answer the question: How did this discrimination end? How did we get religious freedom?

The struggle for Jewish emancipation was a long one. When it finally took place it was closely associated with the emergence of modern liberal states. It was only once the institutional basis for political authority had changed that granting Jews full civil rights became feasible or even conceivable.

Here I will focus on the removal of Jewish disabilities in England. And in particular, I’ll focus on one paradigmatic statement of religious liberty that Thomas Babington Macaulay made in Parliament in 1829 in favor of ending all civil disabilities on Jews. As a statement of religious freedom and liberalism more generally, it is sadly neglected.

Jews faced restrictions on their ability to settle, reside, work and practice their religion in all European societies before 1800. These societies were governed by religion-based identity rules, rules that treated individuals differently based on their religious faith. Britain was relatively liberal; when Jews settled in England following their invitation by Oliver Cromwell in 1655, they were free of most of the discriminatory legislation that burdened them across continental Europe. In particular, they were free of the onerous residency or marriage restrictions that burdened many communities. Nevertheless, they were excluded from political power and from occupations such as the law, government service, and the universities. They lacked religious freedom.

Attaining full religious liberty was a decades-long struggle. Even after disabilities were removed from dissenting Protestants and from Catholics, there was opposition to allowing Jews to sit in Parliament, to graduate from Oxford or Cambridge, or to serve as judges.

Understanding where this opposition came from one requires appreciating how religion upheld political order, even in a society as apparently modern as 18th-century England. Restrictions on dissenters, Catholics, or Jews did not only reflect simple prejudice. Britain was a Protestant nation. Loyalty to the state was inseparable from loyalty to the Protestant Settlement of 1689. The Church of England was a bulwark of the Constitution. Privileges and economic rents were monopolized by the Anglican elite. Catholics, Methodists, Quakers, and Jews were tolerated — they were largely free as private citizens — but they were kept away from political power.

Overturning this required a new basis for political authority. As discussed in an earlier piece on Catholic emancipation by the early 19th century the threat of militant Catholicism had receded while the Church of England was itself a diminished force. Meanwhile, the narrow oligarchic post-1689 settlement was being challenged. British elites were forced to reimagine the sources of political legitimacy.

One of the first to do so was Thomas Babington Macaulay (1800–1859). As an MP, Macaulay was an establishment figure and no radical. But the view of government he laid out was fundamentally different than what had animated his predecessors. It was a secular and liberal view of the role of the state, in which identity rules based on religion had no place. It was in his view only “because men are not in the habit of considering what the end of government is, that Catholic disabilities and Jewish disabilities have been suffered to exist so long”.

“We hear of essentially Protestant governments and essentially Christian governments, words which mean just as much as essentially Protestant cookery, or essentially Christian horsemanship. Government exists for the purpose of keeping the peace, for the purpose of compelling us to settle our disputes by arbitration instead of settling them by blows, for the purpose of compelling us to supply our wants by industry instead of supplying them by rapine. This is the only operation for which the machinery of government is peculiarly adapted, the only operation which wise governments ever propose to themselves as their chief object.”

Macaulay is outlining a liberal, non-heroic, instrumental, view of government. The state is not a project or painting; it is a mechanism for resolving disputes peacefully and facilitating social cooperation. It is a tool meant to serve specific practical purposes rather than a religion or work of art meant to fulfill a symbolic or spiritual need.

Accept this liberal view of the state and the rest of the case for religious freedom follows. As Macaulay put it:

“The points of difference between Christianity and Judaism have very much to do with a man’s fitness to be a bishop or a rabbi. But they have no more to do with his fitness to be a magistrate, a legislator, or a minister of finance, than with his fitness to be a cobbler. Nobody has ever thought of compelling cobblers to make any declaration on the true faith of a Christian. Any man would rather have his shoes mended by a heretical cobbler than by a person who had subscribed all the thirty-nine articles, but had never handled an awl. Men act thus, not because they are indifferent to religion, but because they do not see what religion has to do with the mending of their shoes. Yet religion has as much to do with the mending of shoes as with the budget and the army estimates. We have surely had several signal proofs within the last twenty years that a very good Christian may be a very bad Chancellor of the Exchequer.”

Why did this argument, which seems natural to us, shock Macaulay’s contemporaries? Israel Finestein observed that in “their view it was precisely the religious difference which unfitted the Jew to be a legislator in a Christian country. To them, Macaulay’s argument was dogmatic, even irrational and certainly question-begging”.

Herbert Butterfield observed that

“Those who are interested in the way in which liberty came to emerge will find themselves safeguarded against certain types of error if they will keep in mind that they are looking at the actions and purposes of men as these appear in retrospect — they are making their observations from the hither side of a great transition” (Butterfield, 1977, 574).

Macaulay’s liberal view of the state made sense only on the other side of this transition. It presupposed a state that had moved from religion-based identity rules to general rules.  And this transition, as we discuss in Persecution and Toleration, is the bedrock of modern liberal society.

Of course, once emancipated Jews excelled in numerous fields of endeavor and European society at large reaped huge economic and cultural benefits. Emancipation also had a transformative effect on Jewish communities themselves, giving rise to both the liberal Reform Judaism movement and to various strands of Orthodoxy.  But emancipation also provoked a backlash.

Though the transition from identity rules to general rules and the attendant rise of modern liberal societies and of economic growth brought huge net benefits,  there were many losers – individuals who lost relative status as industrialization reordered the economic order.  Many blamed the Jews, who were seen as the greatest beneficiaries of the new liberal order.

Modern antisemitism arose in the late 19th century just as the last restrictions on Jews were being removed.  In Bavaria, for instance, emancipation was opposed by a petition of citizens from the town of Hilders who did not wish to “humble themselves before the Jews” (Hayes, 2017, 23).

Liberalism has remained resilient in countries like Britain or the United States where its institutional and cultural foundations were strong, but it is not irreversible. To preserve these foundations it is helpful to remember where they made. From that perspective, the case of Jewish emancipation is both instructive and cautionary.


Butterfield, Herbert, “Toleration in Early Modern Times,” Journal of the History of Ideas,
1977, 38 (4), 573–584.

Finstein, Israel “A Modern Examination of Macaulay’s Case for the Civil Emancipation of the Jews.” Transactions & Miscellanies (Jewish Historical Society of England), vol. 28, 1981, pp. 39–59.

Hayes, Peter (2017). Why? Explaining the Holocaust. W.W. Norton & Company, New York.

Johnson, Noel D and Mark Koyama. Persecution and Toleration (Cambridge Studies in Economics, Choice, and Society) ( Cambridge University Press.

Thomas Babington, Lord Macaulay, Critical and Historical Essays contributed to the Edinburgh Review, 5th ed. in 3 vols. (London: Longman, Brown, Green, and Longmans, 1848). Vol. 1

School choice at the Supreme Court

Another school funding case is knocking at the U.S. Supreme Court’s door. This case, Espinoza v. Walborn, hales from Montana, where the state’s fledgling school-choice program was killed moments after it left the crib. The Court now has a chance to revive it and land a major victory for educational choice across the country.

Montana’s first school-choice law, passed in 2015, took the form of a tax-credit scholarship program. If a taxpayer donated to an approved scholarship organization, she could claim up to $150 of the donation as a tax credit. The scholarship organizations then dished out scholarships to help parents afford to put their kids through private school.

Then the Montana Department of Revenue gutted it. The Department promulgated a rule that none of that scholarship money could go to religious private schools. This basically killed the program, since the vast majority of private schools in Montana–and in most states–are religious schools.

The Department claimed that the state constitution prohibited the scholarship dollars from going to religious schools because of the state ban on indirect public aid to religious schools. This is an absurd argument. The scholarship funds are privately donated dollars–they never touch a public coffer. The fact that someone can claim a tax credit hardly means that the donation becomes “public funds” because of diverted revenue. Such an argument, extended to its logical conclusion, would mean that all money is the government’s, and when it graciously declines to tax us, that extra money of ours is in fact part of the public fisc.

Nonetheless, the government prevailed at the Montana Supreme Court. In fact, the Court did the state one better–they just invalidated the whole tax-credit program, even for the few parents who might use a scholarship to send their kids to a secular school.

It’s a terrible blow to parents in Montana trying to find some genuine variety in education. But it also gives the Supreme Court a chance to right a wrong that has been festering in education policy for well over a century. The Supreme Court should hold that barring religious schools from accessing a neutral and generally available funding program violates the Free Exercise Clause and the Equal Protection Clause of the U.S. Constitution.

The portion of Montana’s state constitution that laid the tax-credit program in an early grave is known as a Blaine Amendment, named after 19th-century Congressman James Blaine. In 1875, Blaine proposed a federal constitutional amendment that would, among other things, prohibit states from funding “sectarian” schools with public money. Blaine’s federal amendment failed, but many states passed state-level amendments to the same effect, and Congress managed to make inclusion of such amendments a condition of statehood for new states entering the union.

The history is clear that these amendments are rooted in anti-Catholic bigotry. As the United States transitioned to a public school system, public schools had a distinctly Protestant flavor (often state-endorsed or even state-forced). Catholic migrants therefore began forming and attending private religious schools of their own. The backlash was fierce, and anti-Catholic sentiment often expressed itself in hostility to Catholic schools. James Blaine’s proposed amendment was a key manifestation of this bigotry.

And the bigotry lives on today. Ironically, however, now opponents of genuine choice in education have retrofitted Blaine Amendments as a partisan weapon to combat vouchers, tax credits, and education savings accounts. Montana’s law is only the most recent victim. If the Supreme Court doesn’t grant this case and strike down these state laws rooted in religious bigotry, it won’t be the last.

Catholic Emancipation as a Constitutional Revolution 

Religious toleration is important to Britain’s historical self-image as a bastion of liberty against continental tyrants like Hitler, Napoleon, and Louis XIV.

But for much of the 18th century, Catholics in Britain were barred from government service, the army and navy, the law, and the universities. Formally, they were not allowed to inherit land or even marry with Catholic rites (though in practice there were well-recognized workarounds). Catholic priests faced life imprisonment and Catholic schools were illegal. When these laws were liberalized in 1778, this provoked the worst riot in early modern British history, the Gordon Riots.

Frazer details the travails involved in passing Catholic Emancipation. The King and the Anglican establishment were strenuously opposed to liberalizing laws against Catholics. Despite the fact that he had Catholic friends, George III opposed emancipation because it violated his coronation oath to champion the Protestant religion.

Prime Minister William Pitt proposed emancipation in 1801 and offered to resign if the King disapproved. This prompted George III’s descent into paranoia or “madness”. Frazer notes that

“There had already been a bout of this madness in 1788 and 1789, with the younger George as temporary Regent. Whatever the actual illness from which he periodically suffered, it included among the symptoms an obessional quality which certain topics unquestionably aroused. Catholic Emancipation, that appalling prospect which would cause him to be damned for breaking his sacred vow, was prominent among them:

None of this is mentioned in the 1996 film, featuring Nigel Hawthrone, of course!

Why did Catholic emancipation provoke this reaction? The British state faced a crisis in the early 19th century. Most accounts focus on the French and Industrial Revolutions, which disrupted the existing social order and alarmed ruling elites. Religion is scarcely mentioned. Thus from a Marxian perspective, the Chartists and the passing of the Great Reform Act — which extended the franchise to property holders — represent the bourgeoisie, demanding political rights to match their economic power. Acemoglu and Robinson model the transition from oligarchy to democracy as a game theoretic problem, in which the threat of revolution from below obliged elites to grant democratic rights, in order to make the promise of economic redistribution credible. Neither spends much time on religion.

But an older historical tradition saw the Catholic Emancipation as among the key causes of the constitutional crisis that the British state underwent in the 1820s and 1830s. According to John Derry (1963, 95):

‘The Protestant ascendancy was part of the Constitution: one might say without it the Constitution would never have existed. The Coronation Oath pledged the monarch to maintain the Protestant religion as by law established, while the Act of Settlement ensured a Protestant succession. Both the landed gentry and the commercial classes — as well as the urban mob — believed that if the Protestant ascendancy went the gates were open to unimaginable horrors.”

To understand why this was so, and why Catholic Emancipation paved the way for further liberalization and the rise of liberal democracy, let us revisit the argument of Persecution & Toleration.

The significance of the Protestant Ascendency reflected Reformation England’s Church-State equilibrium. The treatment of Catholics is a canonical instance of what we call condition toleration. Catholicism per se was not illegal, but it was constrained, and these constraints were justified in political terms. Throughout the 17th century, Protestants feared a return of Catholicism which they associated with unrestrained autocratic rule. For Henry Capel MP in 1679:

“From popery came the notion of a standing army and arbitrary power. Formerly the Crown of Spain, and now France, supports the root of this popery amongst us; but lay popery flat and there’s an end of arbitrary government and power. It is a mere chimera without popery”.

It was on these grounds that the Whigs sought to disbar James II from the throne. After the Glorious Revolution, the Toleration Act of 1689 excluded both Catholics and atheists. And famously, the great advocate of religious toleration, John Locke rejected toleration for Catholics, as they were loyal to a foreign prince.

The religious aspect of the Glorious Revolution is neglected in the seminal accounts of it in the political economy and economic history literatures (i.e. here). But the Glorious Revolution settlement did not only guarantee the independence of Parliament from the Crown, it also safeguarded the political position of the Anglican Church by excluding Catholics from positions of power. In return, the Church of England remained the mainstay of state. As J.C.D. Clark (1985, 438) observed:

“The Church justified its established status on a principle of toleration — the toleration of other forms of Trinitarian Christian worship. It drew a sharp distinction between this and the admission of Nonconformists to political power.”

This was particularly significant in Ireland, where the Protestant Ascendency ensured the political and economic dominance of the Anglo-Scottish Protestant elite over the Catholic majority.

Now 18th century Britain was much less reliant on religion to legitimate political authority than prior regimes. As Jared Rubin argues, one consequence of the Reformation was a decline in the legitimizing power of religion; it was superseded by institutions such as parliaments, which represented economic rather than religious elites.

Other things had changed too. The ascendancy of the Church of England was seen as crucial to state security in post-Reformation England. But this was no longer the case by 1800. Following the initial break with Rome in the 16th century, these fears had not been groundless: Protestant Englishmen felt threatened by revanchist Catholic powers such as Spain and France and, in the Gunpowder plot, Catholic conspirators threatened the death of the king and the destruction of Parliament. The fact that the vast majority of Catholics were loyal to crown and country was not enough to alleviate Protestant fears, which occasionally erupted into persecutions, such as those that accompanied the Popish plot.

Following the French Revolution, however, Catholicism was no longer associated with an aggressively expansionist continental power. The old enemy was now secular. Catholic priests fleeing Revolutionary persecution found sanctuary in Britain. And by the 1820s there was a growing pragmatic and liberal opinion in favor of Catholic Emancipation. Lord Palmerston’s argument, as summarized by Frazer (p 157), was that

“. . . times had inevitably changed, and the argument to history could not be sustained: what if Nelson, Fox and Burke had all happened to be Catholics by birth. Would it have been right to deprive the nation of their services?”

Liberal Protestant clergy further argued that

“a Catholic layman who finds all the honor of the state open to him, will not, I think, run into treason and rebellion” (quoted from Frazer, 2018, 158).

Translated into the framework of Persecution & Toleration: the equilibrium had changed. Catholics no longer posed a political threat. The legitimatizing power of the Church of England was waning. Population growth, urbanization — particularly the rise of new urban centers — as well as immigration from Ireland, undermined the ideological hold of the Church of England.

Nevertheless, when the issue finally came to head in 1827–1829, it brought down the government. Catholic Emancipation was the Brexit of its day. When the pro-emancipation George Canning became Prime Minister, its leading opponents, the Duke of Wellington and Robert Peel resigned and the Tory party split into two. Canning then died. But the move towards liberalization now had momentum. Agitation in Ireland raised fears of revolution. In 1828 the Test Act was Repealed. Wellington and Peel reluctantly switched sides. 1829 Catholic Emancipation passed, despite the fact that King George IV disapproved of it.

Thus according to J.C.D. Clark’s insightful (though contested) account:

“As significant were the consequences of Emancipation: the belief that the sovereign would not resist massive constitutional change; and the profound schism which now rent the party of Wellington and Peel” (Clark, 1985, 536).

Catholic Emancipation thus set in motion a more general constitutional revolution. Both Whigs and Tory ultras who opposed Catholic Emancipation lost faith in the existing Parliamentary system. A fundamental pillar of society, the Church-State alliance, had been undermined. It was followed by the Great Reform Act and the rise of liberal democracy. In Clark’s word’s

“. . . the effect of the measures of 1828–1832 was to open the floodgates to a deluge of Whig or radical reform aimed against the characteristics institutions of the former social order . . . English society can point to few events which changed the pattern on the ground with the totality and the dynamism of 1776, 1789 or 1917: 1832 was not such an event. It was, however, decisive in many other ways, for it dealt a death blow to England’s old order. In the process, it produced what in other disciplines is called a ‘paradigm shift’”(Clark 1985, 555–556).

Proposal: Let’s stop calling them “Property Rights”

I think an alternative that is both clearer and more general is “Decision Rights”. When I teach Coase Theorem I use both terms, and (I think) students have an easier time grasping it when they realize that property rights are really just rights to make certain decisions. I can’t see a good reason to keep using the term property rights except that by historical accident it’s become entrenched jargon.

Property sounds like “stuff” to most people. And property rights sounds like “owning stuff”. This raises two points that need clarifying:

1. There is more to the world than just the physical, and there is more to property than just stuff.

I would argue that economic rights are human rights. (I would also argue that corporations are owned and staffed by humans but are not humans themselves.) And I would say that right to self-ownership is a particular type of economic/human right.

When we talk about environmental issues, the root problem is usually over some shared resource (e.g. we can’t neatly privatize the atmosphere and let now-private conflicts be resolved in court). It’s much easier to focus in on the relevant particulars when our language directs us to what’s really at stake (e.g. whether I can decide to put more than X amount of pollution into the atmosphere without legal consequences).

2. I own a bit of land and I can make many decisions about how to use it. But I can’t set up a nuclear reactor or burn a massive pile of debris. My ownership is not carte blanche, but a bundle of different rights. I have the right to use (for normal domestic purposes), to exclude, to sell, etc. By “I own” what I really mean is “I can make a particular set of decisions.

I hope my hard core libertarian friends will agree with me that the decisions I can make are not limited by what is explicitly legislated. I suspect my interventionist friends will disagree. But I also think interventionists can agree that it’s more reasonable for me to have a set of decision rights (how ever nebulous the extent of that set is) than some more magical sounding dominion/ownership over a particular fifth of an acre.

The notion of decision rights makes it clearer what political debates are over. If we want to pass a law saying you can’t put a pool in your yard because of spotted owls, “property rights” muddies the discussion. The law would take away a particular property right–which is to say, the right to make a particular decision. But the debate is going to devolve into “you’re taking our land” vs. “no we aren’t.” It’s close to the real issue, but not close enough.

tl;dr: When we talk about “property rights” or ownership what we really mean is a set of various decisions that one has a right to make. Those decisions might be over the use of what we traditionally call property (e.g. my yard), but it might also be over shared resources (e.g. the atmosphere), decisions with collective impacts (e.g. ecosystem management–or lack thereof), or socially constructed issues (e.g. intellectual property). The term “property rights” is not clear or obvious (particularly for people who aren’t already likely to read this blog). A better term would be “decision rights.”

Old Property

Property is the basis for every right and ounce of autonomy we have. James Madison called property “that dominion which one claims and exercises over the external things of the world, in exclusion of every other individual.” Madison went on to argue that basically every right we enjoy is reducible to a property right. We have property in our opinions, in the free use of our faculties, in the safety and liberty of our body, and so on. He believed that “Government is instituted to protect property of every sort” and a government can only be just if it “impartially secures to every man, whatever is his own.”

But government has not remained impartial in this endeavor. It has become a massive property owner in its own right.  It has also become a gatekeeper, setting the terms for individuals’ uses of their own property. It has also become a broker and redistributor of property. And finally, it has =become a creator of property in the form of entitlements–what Charles Reich famously called “new property.” It’s this last role that I’d like to discuss here.

Government’s role as a creator of property has muddled and watered down the strength of property rights. The problem began when U.S. courts started grappling with claims that individuals had been deprived of a constitutional right when government stripped them of a government-created entitlement, such as social security.

Courts confronted with this problem basically held that while constitutional rights do attach to entitlements, the government has an increased authority to limit the rights to those entitlements. Essentially, since the government created the entitlement, the government can define the scope and terms of that entitlement.

This “new property” doctrine then became entangled with a different idea altogether. The United States Constitution protects against deprivations of life, liberty, and property without due process of law. The Constitution, however, does not define property. Courts have held instead that state law defines property , and the Constitution then protects rights to that property.

That does not mean, however, that all property can be whisked away at a whim as if it is all “new property.” Rather, even though state law may establish what property is, states do not have the power to mutate and redefine all property rights on a whim. In essence, there is “new property” and then there is “old property.”

“Old property” is a bundle of long-recognized property rights rooted in common law. But just because those rights have arisen from common law courts over the centuries does not mean that these are property rights created by government in the same sense as less-protected “new property.” There is a fundamental difference, for constitutional purposes, between government recognizing a boundary line and creating a food stamp program. In some sense, this difference strikes a deeper philosophical chord, one that distinguishes between positive law and natural law–or fundamental rights that are acknowledged and respected by government, and entitlements that are created and controlled by government.

What are these fundamental property rights? Most are intuitive and understood by babies as soon as their hands are capable of grasping. They include the right to exclude others (the first property right understood by all children everywhere), the right to quiet enjoyment, the right dispose of the property by sale or lease, the right to develop and improve the property, etc. That right extends to chattel and land–things the government does not create but simply exist and are brought under human ownership through a first-in-time rule or a transfer.

The idea that “new property” deserves lesser protection because government dictates its bounds has bled over into the “old property” rights. This stems from confusion between government recognizing the existence of a fundamental right and government creating an entitlement. Extensive permitting regimes have only exacerbated this confusion. When local governments demand a permit before a property owner can do something with their land, the government looks upon that permit as an entitlement–a privilege and not a right. Thus, “new property” ideas come to overlay and suffocate “old property.” As permitting regimes expand, the world of “old property” retracts. But that permit is not a “new property” entitlement–it’s a condition placed upon a fundamental background right–an intruder upon natural law. When a permitting authority tries to strip away or deny a permit, that denial should be subjected to the full rigor of constitutional scrutiny offered to “old property,” not the weak sauce protections for entitlements.

If a government is only just if it limits itself to protecting what is ours, as Madison believed, then we don’t have many just governments left to us. Courts could help by establishing a clearer distinction between the old and the new forms of property so that governments can’t get away with redefining or stripping away fundamental property rights.

Three Lessons on Institutions and Incentives (Part 8): Conclusion

Far from the custom of assigning to cultural factors, or educational, or geographic or relative to the particular constitution of the ruling elites, the three works reviewed – Institutions, Institutional Change and Economic Performance, by Douglass C. North; The Elusive Quest for Growth, by William Easterly and Why Nations Fail, by Daron Acemoglu & James A. Robinson, state an explanation of the progress and decline of nations articulated on abstract incentives, which serve as a structure in which frame the rational agent makes his choices. The four authors have a common reference to methodological individualism, but such an individual agent does not make decisions in a vacuum, but inserted within a framework of incentives.

That such incentives, to act as points of reference for individual action, should materialize historically, does not mean that such conditions for action come from a particular circumstance of time and place, but that they depend on an abstract structure that relates to different terms and that is present in every phenomenon of human interaction.

To finish, it is worth referring to the conclusions reached by North in his referenced work: the case of the two successive Spanish Americas, the Habsburg and the Bourbons. The first extended from the discovery and colonization of America to the early eighteenth century. The viceroyalties of America enjoyed great political autonomy – Spanish immigration had been little and a “Creole” elite had developed – and they were closed to trade, which was limited to the “export” of gold to Spain. With the arrival of the Bourbons at the beginning of the 18th century and the implementation of their Reforms – which from the economic point of view were a resounding success both in Spain and in America – the relationship was reversed: political power passed into the hands of the “Peninsular Spaniards” and an opening of a more fluid trade between the metropolis and its colonies was launched. North explains that the independence movements could be successful due to a transitory alliance between the sectors that wanted to return to the Habsburg system and those who wanted to deepen the modernizing and free-market impulse of the Bourbons. Once achieved independence, these two currents came into conflict, which, according to the author, would extend until today.

According to North’s thesis on Spanish America, there would be two political patterns in tension: on the one hand, an elitist politician who is open to the economy and on the other a “popular” current that is traditionally protectionist. In the second half of the 19th century, success belonged to the “Bourbon pattern” and, in the 20th Century, the “Habsburg pattern” prevailed. In terms of Acemoglu & Robinson, it would be the dispute between a combination of extractive political institutions with inclusive economic institutions and another combination of inclusive political institutions with extractive economic institutions. Of course, in practice, moments of extractive political and economic institutions were also known, as well as short-lived experiences of inclusive institutions, both politically and economically.

The notion of polarized societies used by Easterly can serve as a way to deepen this analysis. It is much clearer to find problems of countries with societies divided into distant and dissimilar regions, in which the policy is expressly articulated as a function of tribes or ethnic groups and which the dispute over public policies expressly favors or harms a another ethnic group. However, as it has been stated, it is not ethnicity or nationality that determines the low economic and institutional performance of a country, but the polarization structure itself, whatever the functions in which such polarization is expressed (language, religion, ethnicity, ideology, etc.). Understanding these latter is fundamental to be able to provide a common thread for a principle of solution.

Just as on the political level an express agreement can be reached on the way to choose who exercises public power and under what conditions, Easterly states a series of conditions related to economic institutions whose agreement would allow for economic growth, regardless of the region, culture, or education of the ruling class of each country. Throughout The Elusive Quest for Growth you can find mentioned to free trade as a main factor of progress, monetary stability and exchange freedom as examples of clear and equitable rules, a state that participates in large infrastructure works but that refrain from arbitrating in the distribution of economic rents among various groups, a low level of public indebtedness, stability in property rights and an independent justice that allows individuals to innovate and save, as well as support programs and incentives to members of society who are immersed in poverty traps.

As mentioned, many times the policy -especially when, in the terms of Acemoglu & Robinson, it is inclusive- consists of the composition of interests of various kinds for the purpose of articulating a government program. From the work of the authors commented here, it can be inferred that, just as there is an agreement on the political plane regarding the rules of the democratic game, which include periodic elections, limited re-elections and division of powers, among others, there should also be a consensus in a body of economic institutions that should be left out of political negotiation, so that economic policy is as neutral as possible against the conflicting interests of which a country with a polarized society is composed.

[Editor’s note: Here is Part 7, and here is the entire, Longform Essay.]