Some lessons from Brazil

Jair Bolsonaro has been in government for almost six months now. I believe I can proudly say that I saw this coming before many people: Bolsonaro would be the next president in Brazil. However, he might not be the best person for the job.

In my assessment, Bolsonaro is not the usual politician. As John Mearsheimer brilliantly observed, politicians lie. A lot. It should be a given: dogs bark, cats climb on trees, and politicians lie. Bolsonaro, as far as I can tell, doesn’t. And that might be part of the problem: he always speaks his mind. Nothing is concealed, even when strategy might call for that.

In the past week, Bolsonaro sent an open letter to some of his followers (not written by him) manifesting how hard it is to govern Brazil. The letter sounds like a vent for the president’s frustration: “You Either Die A Hero, Or You Live Long Enough To See Yourself Become The Villain”. But what Bolsonaro means by all that is not clear. For all sorts of reasons, corruption is a living part of Brazilian politics. Actually, of politics in general, just a little more down there. So why the president sounds surprised by that?

Some people in the press speculated that Bolsonaro plans a coup. Call that it is impossible to govern with the current congress and just close it. To be sure, that is not unthinkable, and Brazil has historical precedents for that. But that doesn’t sound like something that Bolsonaro would do. Sounds more like that he is trying to bypass Congress and govern with direct popular support.

Brazilian congress is fabulously corrupt, and Bolsonaro still enjoys great popularity. Maybe he wants to use that to press Congress for the changes Brazil needs. In any case, it is a good opportunity to remember some lessons: power corrupts and absolute power corrupts absolutely. Or, in other words, if men were angels, we wouldn’t need government. And if we were governed by angels, we wouldn’t need checks and balances. But we are not governed by angels. Therefore, checks and balances are necessary. The downside is that this makes the government slow when important changes are necessary. The temptation is to close democratic institutions and just do things the old fashion way: through a dictatorship. I don’t think that is where Brazil is going right now. But it’s important to remember that we need way more than a president. We need people who really understand and appreciate freedom. An uneducated people on these matters will always grow impatient and vote for an easy solution.

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.

Nightcap

  1. James Madison won the shutdown Greg Weiner, Law & Liberty
  2. A Marxist defense of Venezuela Louis Proyect, Unrepentant Marxist
  3. Emergent complexity in a multi-planetary ecology Nick Nielsen, The View from Oregon
  4. Christian martyrs, marriage, and the Middle East Christian Sahner, Aeon

Nightcap

  1. On “Madison’s nightmare” Ilya Somin, Volokh Conspiracy
  2. Good parenting versus good citizenship Gina Schouten, Crooked Timber
  3. The birth of the British East India Company Francis Sempa, Asian Review of Books
  4. The bitterness of Adam Smith Branko Milanovic, globalinequality

Why the left loves democracy

The left loves to talk about democracy. Brazil’s former president Lula da Silva is in jail. Finally. Leftists inside and outside Brazil call this a crime against democracy because the polls were showing that in the upcoming October elections Lula would be elected president. The people wanted Lula president, and a judge, Sergio Moro, against the will of the majority, jailed Lula.

I will consent to this argument. Maybe Lula was going to be elected in October (although I have serious doubts about it). Would this be democratic? Maybe. In its most pure form, democracy is the rule of the majority. A good picture of this is three wolves and a sheep voting on what they are going to have for dinner. Leftists in power (or hoping to be in power) love this.

A pure Democracy, by which I mean a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. — James Madison, Federalist No. 10

Brazil top court delays decision on blocking prison for ex-president Lula

Brazil’s Supreme Court decided that leftist former president Luiz Inacio Lula da Silva cannot be sent to prison for a corruption conviction until he exhausts all possible appeals. About that:

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be tomorrow.” – James Madison (16 March 1751 – 28 June 1836), fourth President of the United States (1809–1817), co-author, with John Jay and Alexander Hamilton, of the Federalist Papers, and traditionally regarded as the Father of the United States Constitution.

“Brazil is not for beginners.” – Antônio Carlos Jobim (January 25, 1927 – December 8, 1994), also known as Tom Jobim, Brazilian composer, pianist, songwriter, arranger, and singer. Widely considered as one of the great exponents of Brazilian music.

BC’s weekend reads

  1. NATO sends a message to Russia
  2. Iraq doesn’t need to break up to be successful (so says a scholar at Brookings)
  3. Benedict Anderson (political science) reviews Clifford Geertz (anthropology)
  4. The Muddled Mystique of Karl Polanyi
  5. The prison house of gender
  6. Investigating Madison’s Political Religion (central planning is hard to do)