The Federation of Free States: Growing pains

02/02/202202/02/2022 Brandon Christensen Culture, Law, Politics compound republic, federation, foreign policy, geopolitics, international relations, James Madison

We’re continuing our thought experiment on adding more states to the American republic.

Our initial experiment added 29 states to the union in 2025. After a few decades of relative success (the entire world grew economically from 2025 to 2045), the bicameral Congress of free states was willing to accept several new members, who in turn were willing to trade their sovereignty for two seats in the Senate. The polities that joined the federation of free states in the second peaceful geographic expansion of the Philadelphian federal order were varied, but only somewhat predictable. The Madisionian compound republic rearranged the map once again. Here is what it looks like in 2045:

The red places were “states” in 2025, the orange places are new “states” in 2045.

As you can see, most of the expansion came in North America, East Asia, and West Africa. The experience of Canaan, England, and Wales hasn’t been bad, but enough nationalist-secessionist sentiments remain in these three “states” that none of their neighbors thought that giving up their sovereignty for Senate seats was worth it. All three economies grew, and peace finally came to Canaan, but if peace, wealth, and security from predation were the only things that people wanted then we wouldn’t be people. We’d be something else entirely. People want freedom, and the compound republic – the federation of free states – did not yet show in 2045 it was capable of extirpating the menace of nationalism from human existence.

The success of the ranching states of Mexico – Coahuila, Tamaulipas, and Nuevo León – within the United States prompted several more Mexican states to apply for statehood, but the pushback against too many states joining the union was stern. Yucatán and Chihuahua were added as is, giving the Senate four more seats, but the states of Zacatecas, Durango, and San Luis Potosí had to combine into one state (they called it San Luis Potosí, and it’s about the size of Nevada) in order to join the Philadelphian world order.

The prairie provinces of Canada also did well for themselves since 2025. So well, in fact, that five more provinces applied to join. However, Congress did not want to add five more states with such sparse populations, so the Atlantic provinces of Nova Scotia, Prince Edward Island, New Brunswick, Newfoundland, and Labrador merged to become a state that they called Nova Scotia, a massive landmass with enough people for only one or maybe two representatives. By the way, from 2025 to 2045, several old American states — Washington, Oregon, and Vermont – all held referendums on whether to leave the Madisonian republic and join Canada (or go it alone), but the referendums have proved to be unsuccessful.

Liberia’s success in the American federation is perhaps the most encouraging progress of all. Crime rates skyrocketed once Liberia joined the union, but this only shows how the American legal system does such a wonderful job of protecting property rights. Violent crime dropped, but crimes involving property rights reached an all-time high, which means that property rights in Liberia are finally being protected by a state strong enough to do so. The GDP (PPP) per capita of Liberia quadrupled from 2025 to 2045. Several neighboring states took notice, but only one, Sierra Leone, joined the federation outright.

Several Nigerian and Ghanaian polities joined the republic. All of the polities started out as administrative units within Ghana and Nigeria, and there were too many that wanted to join. So, they borrowed from San Luis Potosí’s playbook and merged with each other before applying for statehood as larger polities. From Nigeria, the states of Oyo (made up of five Nigerian states), Biafra (made up of eight states), Benin (made up of four states), and Bayelsa (three states) all joined. The states are all from the south of Nigeria.

Ghana sent three states to the republic: Ashanti (made up of five Ghanaian provinces), Volta (made up of three provinces), and Cape Coast (three provinces). The 11 provinces that made up the three new states were all from Ghana’s south. It should be noted the the Ashanti region had a relatively strong sense of nationalism when it applied for membership to the federation, and that the extirpation of this nationalism in exchange for self-government in a compound republic was not a problem for its inhabitants.

Colombia and Panama. The Caribbean experience has had less of a “wow factor” than Liberia or Mexico. Economic growth in Antilles was a little bit better than the regional average, but not by much. The big change was demographics, as many seniors from the original 50 states moved to Antilles, and many young people from Antilles moved to the original 50 states. The crime rate was similar to that of Liberia, too, with violent crimes dropping but property crimes increasing a little bit. Most of the countries in Central America (sans Costa Rica) and all of the Pacific countries in South America applied for membership in one form or another. However, only four states were added in 2045: three from Colombia and the whole of Panama. The four states got together and pulled out a map of 19th century Gran Colombia to put together a plan for federation. Isthmo (Panama), Cundinamarca (made up of eight Colombian states), Magdalena (made up of six states), and Cauca (five states) all joined the federation of free states.

Things went so well in East Asia and the Pacific that the entire country of Vietnam applied lock, stock, and barrel. Like Japan, South Korea, and the Philippines in 2025, Vietnam had too many states for the federation so six regions joined instead: Bắc Trung Bộ, Bắc Bộ, Tây Nguyên, Đông Nam Bộ, Tây Nam Bộ, and Đồng Bằng Sông Hồng. The Vietnamese now enjoy the military and economic benefits that come with being federated with the compound republic of the United States.

Further thoughts

The Canadian and West African states are the only ones with English-language speakers. Nevertheless, English continues to be employed as the lingua franca of the federated polity. This has produced a class division between those who can speak English and those who cannot, and eventually English will be spoken by nearly everybody in the polity (now numbering just over one billion souls), but the native languages are unlikely to disappear. They’ll continue to evolve on their own lines, and most people in the federation will simply be able to speak more than one language. The English of the Constitution and Bill of Rights will no doubt become antiquated as English evolves, but it’s already pretty antiquated today (2022) and there’s been no real challenge in 250 years to English’s status as the lingua franca of the republic.

Reactions to the compound republic from other states

Perhaps the most interesting aspect of the United States’ decision to apply federation to its foreign policy is the reaction of other states. The Russians, who it could be argued had an alternative to the Westphalian order in the 19th century (and this is why it pursued its own foreign policy agenda throughout the Cold War, rather than for the exportation of the Revolution), are still doing what they’ve been doing since 2000: recognizing small states along their vast border and slowly chipping away at the losses of their empire. States such as Donetsk, South Ossetia, and Crimea are recognized as states by Russia, Belarus, and, say Kazakhstan, but in 2045 the compound republic decided to build upon its foreign policy of federation by recognizing these claims to independence. This means that post-Soviet states like Ukraine and Georgia lose territory, but it doesn’t necessarily make Russia stronger and it doesn’t mean freedom is in decline. Out of two states (in this example), five now exist, and there’s nothing to suggest that they won’t lean on the compound republic rather than the Russian Federation.

The CCP turned inward, especially once the compound republic called its bluff on Taiwan. Like Russia, it has been argued that an alternative state system to Westphalia existed prior to 19th century European imperialism. The Belt and Road Initiative was supposedly part of the Tianxia state system, but regardless of whether or not you buy this argument (I don’t), China’s expansion ceased once Japan, South Korea, and Taiwan joined the Philadelphian union. The CCP became even more repressive and paranoid. The non-Han grew more despondent, and the non-Mandarin speaking Chinese, especially those living along the wealthy seaboard of the South China Sea, grew angry.

The Europeans and their interstate system continued to try to keep the Westphalian European Union alive, but without the abrogation of state sovereignty, the EU continued to be ineffectual. The French, taking a page from the American playbook, revived an old effort to federate with its former colonies. The French continued to adhere to a Westphalian logic in this effort, and the French Union floundered as badly as the European Union. The key to Madisonian compound republic’s success has been its abrogation of state sovereignty (which is “traded” for seats in the Senate). Portugal reached out to Brazil and Angola to discuss a Lusophone federation, and ties became closer, but Westphalian sovereignty trumped all discussions of cooperation and the Portuguese found themselves in the same situation as the French: members of two ineffectual confederations that are built upon Westphalian nation-state sovereignty.

The remnants of the British and Spanish Empires (Peru, Argentina, Australia, India, Pakistan, Sri Lanka, New Zealand, Iraq, Egypt, Saudi Arabia, the British Caribbean, etc.) continued along the same path as the Europeans. Economic growth continued at its slow pace, but compared to the societies living within the compound republic, it was becoming clear that the Westphalian remnants were losing ground, especially in regards to liberty, equality under the law, and democratic governance.

In 2045, the American republic added 22 more states, making the federation a conglomerate of 101 “states” and the District of Columbia. Liberty is on the rise, and despotism is getting cornered.

Supranational (political) entrepreneurs

05/21/202105/21/2021 Brandon Christensen Links alliances, Andrew Moravcsik, European Union, federation, free riding problem, James Madison, non-intervention, political entrepreneurship, rent seeking, unilateralism

[…] the basis of the functional (Coasian) theory of international regimes advanced by Robert Keohane: If interstate transaction costs were very low, relative to the gains at stake for each actor, decentralized negotiation among voluntary actors with property rights would generate efficient outcomes. In summary, we may define informal supranational entrepreneurship as exploitation by international officials of asymmetrical control over scarce information or ideas to influence the outcomes of multilateral negotiations through initiation, mediation, and mobilization. […] Most existing studies of entrepreneurship fail to address this central puzzle. They focus on characteristics of supranational entrepreneurs and their actions, not the nature of alternatives.

The link (pdf) is here, and it’s a good read despite the jargon. You’ll notice that neither the Federalist Papers nor Hayek are cited in the piece. Libertarians have a chance to become relevant again in international affairs, if only they came to re-embrace the ideas of Madison, Smith, and Hayek, by abandoning non-interventionism and alliance free-riding and recognizing that federation is both a foreign policy and a type of government.

James Madison continues to be underrated

05/18/202105/15/2021 Brandon Christensen Religion economic development, factions, fractionalization, James Madison, wealth

d) While ethnic and linguistic fractionalization are associated with negative outcomes in terms of quality of government, religious fractionalization is not; in fact, if anything, this measure displays a positive correlation with measures of good governance. This is because measured religious fractionalization tends to be higher in more tolerant and free societies, like the United States, which in fact displays one the of the highest level of religious fractionalization. This result has no bearing, however, on the question of whether certain religious denominations are correlated with better politico-economic outcomes, an issue recently explored by Barro and McLeary (2002).

Woah. Here’s more:

Whether societal conflict is the result of fractionalization or polarization is largely an unresolved question in theory, calling for empirical work. The discussion of whether a country with many relatively small groups is more or less stable than one with only two equally sized groups is an old one, and goes back at least to Madison in the Federalist Papers of 1788 (nos. 10 and 11 see Hamilton et al., 1911). Without much of a stretch of Madison’s views, one can argue that a polarization measure is, according to him, the appropriate concept to capture heterogeneity.

Read the whole thing here (pdf).

Some Monday Links

04/19/2021 Michalis Trepas Links Adam Smith, Bill of Rights, comics, Germany, James Madison, philosophy, Wealth of Nations

Madison’s Consistency on the Bill of Rights (National Affairs)

Reading Wealth of Nations and Meeting Adam Smith (The Hedgehog Review)

Not everyone (Verfassungsblog)

Philosophers Rebuild Society (Existential Comics)

Nightcap

03/20/202103/20/2021 Brandon Christensen Links Aldous Huxley, British culture, federation, Immanuel Kant, James Madison, March Madness, totalitarianism

Our very British brand of totalitarianism James Jeffrey, Critic
Federalist versus democratic peace (pdf) Daniel Deudney, EJIR
Go Bruins!

The politics of The Expanse

11/08/202011/07/2020 Brandon Christensen Culture, Politics astropolitics, factions, James Madison, nationalism, The Expanse

I am rewatching The Expanse, which is a deservedly popular science fiction show on Amazon Prime. It’s very good. As I said, I am rewatching it, mostly in anticipation of the new season, which comes out next month.

It’s good because I like my science fiction to be science-y. I prefer realistic scenarios. So Star Wars is not really my thing (even Star Trek is a stretch, to be honest, but DS9 is amazing).

One thing that strikes me as wrong in The Expanse is the politics. In the storyline, there are three political units: Earth, Mars, and the Belt. Earth and Mars are sovereign, and the Belt (based out of the asteroid belt) is semi-sovereign with a distinct and viable “nationalist” movement there. This is a sophisticated storyline for television. It’s better than DS9, which bore the standard for great science fiction television until The Expanse came along.

But I can’t stop thinking: why would the political alignment of the solar system be based on planets? If it were to be truly realistic, then Earth would not be a sovereign political unit. Instead, we’d have a dozen or so political units from Earth, some political units from Mars, and several from the Belt. Factions in the form of sovereign political units would dominate the political landscape, not planets.

Now, The Expanse does a good job confronting the issue of faction. Earth’s democratically-elected dictator has to deal with several factions, and Mars and the Belt both have factions, too. And several excellent subplots deal significantly with the issue of faction. But there’s not enough sovereignties in The Expanse. It doesn’t mean the series isn’t the best science fiction television series of all time (it is), but it does leave me wanting more.

Nightcap

10/21/202010/21/2020 Brandon Christensen Links constitutionalism, James Madison, Nigeria, United Kingdom

The American Founders’ priceless legacy Myron Magnet, New Criterion
The gonzo constitutionalism of the American Right Corey Robin, NYRB
Britain at the end of history Robert Saunders, New Statesman
Law’s disorder in Nigeria Marc-Antoine Pérouse de Montclos, LMD

Nightcap

09/04/202009/04/2020 Brandon Christensen Links cancel culture, David Graeber, James Madison, Marcel Mauss

How David Graeber changed the way we see money Matthew Zeitlin, New Republic
What’s wrong with “cancel culture,” again? Irfan Khawaja, Policy of Truth
Why socialists should care about about American federalism Chris Maisano, Jacobin
In loving memory of David Graeber Andrej Grubačić, PM Press

“Polycentric Sovereignty: The Medieval Constitution, Governance Quality, and the Wealth of Nations”

07/27/202007/25/2020 Brandon Christensen Economics, History compound republic, economic growth, James Madison, polycentric order, polycentric sovereignty, state capacity, state sovereignty, Vincent Ostrom

It is widely accepted that good institutions caused the massive increase in living standards enjoyed by ordinary people over the past two hundred years. But what caused good institutions? Scholars once pointed to the polycentric governance structures of medieval Europe, but this explanation has been replaced by arguments favoring state capacity. Here we revitalize the ‘polycentric Europe’ hypothesis and argue it is a complement to state capacity explanations. We develop a new institutional theory, based on political property rights and what we call polycentric sovereignty, which explains how the medieval patrimony resulted in the requisite background conditions for good governance, and hence widespread social wealth creation.

By Alexander Salter & Andrew Young. Read the whole excellent thing here. I wonder how much the author’s conception of “polycentric sovereignty” has in common with Madison’s compound republic?

Salter & Young do a great job bringing decentralization back into the overall “economic growth and political freedom” picture. Over the past two decades, political centralization as a good thing has been making a comeback under the guise of “state capacity.” This isn’t a bad trend, but it has left several large gaps in understanding how economic development and political freedom works. (For example, how to prevent centralized states from pursuing illiberal ends, or using illiberal means to pursue supposedly liberal ends.)

This article brings decentralization back into the picture, using Elinor and Vincent Ostrom’s conception of polycentricity as a model. However, I don’t think they spend enough time on Vincent Ostrom’s understanding of the American compound republic. The American federalists were concerned with exactly the same thing that we are concerned about now: how to maintain a proper balance of centralized power and decentralized power so that liberty may flourish. I’ve emphasized the important part with italics. The liberty aspect gets de-emphasized to make room for the sexier “economic growth” aspect, but political freedom is still paramount when it comes to thinking through matters of politics.

The American federalists, and especially Madison, came up with the compound republic to address the centralized/decentralized debate. Scholars continue to underrate its genius and usefulness for capturing humans as they are. Ostrom’s book on the Madisonian compound republic is worth your time and money. Read it in tandem with this book on the Federalist Papers and this book on the formation of the American republic and this short paper on the continued viability of the compound republic to today’s world. Once you’ve done the readings, start writing (or better yet: blogging!).

Nightcap

04/12/202004/12/2020 Brandon Christensen Links coronavirus, economics, Israel, James Madison

Comparing economics and epidemiology? Tyler Cowen, MR
Um, we still need a back-to-work plan John Cochrane, Grumpy Economist
Israel, Arab citizens, and coronavirus Afif Abu Much, Al-Monitor
How about just 10% less democracy? Adam Wakeling, Quillette

Entangling alliances, Donald Trump, and a new libertarian alternative

12/21/201912/21/2019 Brandon Christensen Current Events, History alliances, checks and balances, constitutionalism, federation, James Madison, Murray Rothbard, NATO, transactionalism, Washington Doctrine of Unstable Alliances

Some say that Donald Trump’s transactionalism in the realm of geopolitics has gotten out of hand. Tridivesh has actually been saying this for awhile now. Jacques is not pleased with the president’s decision to withdraw American troops from Syria. Of the other Notewriters, only Andre has spoken up for Trump’s withdrawal from Syria.

There are libertarians and leftists who have applauded Trump’s move, but for the most part people are dissatisfied with the way the president of the United States conducts foreign policy. There’s no logic. There’s no strategy. And the incentives don’t quite line up, either: is Trump out for the republic or himself?

This is unfair. Trump’s transactionalism comes with more press, but Obama and the guy before him were transactionalist presidents, too. Just think about Syria to begin with. Getting involved in the butchery there had no logic to it and actually went against the strategy of Obama’s “Pivot to Asia.” Still, Obama mired the republic in another brutal regional scuffle. GWB did the same thing in Iraq, too. Osama bin Laden was hiding out in Afghanistan, so Bush invaded Iraq, a country that had nothing to do with 9/11. Makes sense, right?

Maybe we’re looking at this all wrong. Maybe we should be looking at the incentives and trade-offs available to the executive branch of the American government instead of single individuals.

My contribution to reassessing American foreign policy is to look at the role that formal alliances play in chaining down the executive branch in the American system. Libertarians loathe both alliances and the executive branch, but what if one is useful for off-setting the other? Which one would you rather have? (Trade-offs are more realistic than utopias, my fellow libertarians.)

There are two general types of alliances in the world: formal and informal. Alliances have been with us since the dawn of time, too. Think of the alliances our Stone Age ancestors made, one individual at a time. Elected politicians make alliances and call them political parties. Dictators make alliances and call them bargains. You get the picture. The United States has traditionally made use of informal alliances, so Trump’s abandonment of the Kurds in Syria is really a continuation of American foreign policy and not an aberration as some hawks claim.

In fact, prior to World War II, the United States had signed just one official alliance with another polity: the Treaty of Alliance with France that lasted from 1778-80. So from the start of the Revolutionary War (which was really a secession from the British Empire rather than an actual revolution) in 1776 to America’s entrance into World War II in late 1941, the United States had joined only one alliance, and it was a short-lived alliance that would make or break the existence of the republic. (During World War I, the United States was an “affiliated partner” rather than an official ally.)

This doesn’t mean that the United States was isolationist, or non-interventionist, during this time frame. In fact, it highlights well the fact that the United States has a long history of entering into alliances of convenience, and a short history of building and then leading stable coalitions of military partners around the world. Alliances have shaped the destiny of the republic since its founding. And, more importantly, these alliances of convenience have their intellectual roots in George Washington’s foreign policy. Washington’s foreign policy even has its own name: the Washington Doctrine of Unstable Alliances. According to Washington and other elites of the founding era, the United States should freely enter into, and exit, alliances as necessary (Jefferson was a big fan of this Doctrine, too). This stands in stark contrast to the idea that the United States only soiled its virginal unilateralism once, when it was in dire peril and needed a helping hand from France to fend off an evil empire.

Washingtonian alliances throughout American history

Aside from fighting alongside the Oneida and Tuscarora during its secession from the British Empire, the United States forged alliances with Sweden, in 1801 to fight the Barbary states, and with the Choctaw, Cherokee, and some of the Creek during the ill-fated War of 1812. In fact, one of the reasons the United States got pummeled in the War of 1812 was the lack of Native allies relative to the British, who had secured alliances with at least 10 Native American polities.

The American push westward saw a plethora of shifting alliances with Native peoples, all of which tilted in eventual favor of the United States (and to the detriment of their allies).

The American foray into imperialism in the late 19th century saw alliances with several factions in Cuba and the Philippines that were more interested in extirpating Spain than thinking through an alliance with an expansion-minded United States.

In 1832 the United States entered into a Washingtonian alliance with the Dutch in order to crush some Barbary-esque states along the Sumatran coast. The alliance led to the eventual, brutal conquest of Aceh by the Dutch and a long-lasting mutual friendship between the Americans and the Dutch.

From 1886-94 the United States and its ally in the South Pacific, the Mata’afa clan of Samoa, fought Germany and its Samoan allies for control over the Samoan islands. The Boxer Rebellion in China saw the United States ally with six European states (including Austria-Hungary) and Japan, and affiliate with three more European states and several Qing dynasty governors who refused to follow their emperor’s orders.

NATO’s continued importance

Clearly, the United States has followed its first president’s foreign policy doctrine for centuries. Washington warned that his doctrine was not to be an eternal guideline, though. Indeed, the most-cited case study of the Washington Doctrine of Unstable Alliances is not the American experience in the 19th century, but the Nazi-Soviet one of the 20th, when the Germans turned on the Soviets as soon as it became expedient to do so.

The establishment of NATO has forced the United States to become reciprocal in its alliances with other countries. The republic can no longer take, take, and take some more without giving something in return. This situation of mutually beneficial exchange has tempered not only the United States but everybody else in the world, too (especially in the industrialized part of the world; the part with the deadliest weapons). Free riding will most likely continue to be a problem within NATO. The United States will continue to pay more than its share to keep the alliance afloat. And that’s perfectly okay considering most of the alternatives: imperialism (far more expensive than free riding allies), ethnic cleansing, or oscillating blocs of states looking out for their own interests in a power vacuum, like the situation Europe found itself in during the bloody 20th century.

The forgotten alternative

Unstable alliances lead to an unstable world. The rise of NATO has been a boon to the world, despite its costs. If libertarians want to be taken seriously in the realm of foreign affairs, they would do well to shake off the Rothbardian shackles of isolationism/non-interventionism and embrace Madisonian federalism with a Christensenian twist. The 13 North American colonies that broke away from the British Empire were sovereign states when they banded together. The 29 members of NATO are sovereign states, too, and there’s no reason to believe that Madison’s federal blueprint can’t band them together as well.

If libertarians are comfortable embracing non-interventionism as a foreign policy doctrine, even though it has never been tried and even though it’s based on a shoddy interpretation of history, there’s no reason why they can’t instead embrace federation as their go-to alternative. Federation at least has history on its side, and it’s also got the obscure appeal that libertarians so love to ooze at public gatherings. Will 2020 be the year that libertarians shift from non-interventionism to federation?

Some lessons from Brazil

05/21/201905/21/2019 Bruno Gonçalves Rosi Current Events, Liberty, Politics Brazilian politics, checks and balances, corruption, Jair Bolsonaro, James Madison, John Mearsheimer, rule of law

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

04/03/201904/04/2019 Ethan Blevins Law, Liberty, Philosophy James Madison, new property, property rights

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.