For a Kinder, Gentler Society
Locke, Jefferson, and the Justices:
Foundations and Failures of the US Government
  • George Stephens
Reviews Table of Contents Introduction «Back
Locke, Jefferson, and the Justices:. Foundations and Failures of the US Government
Sound Bite
America's first question – to give more power to the individual, or to a central power? – set the stage for an ongoing struggle between the Feds, the States and the Citizen. The balance of power is still shifting even in the 21st century. Supreme Court appointments are a major weapon in this struggle. George Stephens shows how far we have departed from the Founders' original intentions. 

With a Foreword by Newt Gingrich, this book contrasts Hamilton’s and Jefferson’s views on the role of government and shows how the beliefs of Supreme Court appointees and the actions of Congress shape American democracy. 

About the Author

George M. Stephens is an economist specializing in real estate markets; he taught economics for several years at North Carolina State University. His post-graduate training includes city planning law, real estate law and constitutional law, all of which bear on the law of property rights, a principal subject of this, his first book. He has written for several magazines and is contributing editor of the Carolina Journal of the John Locke Foundation.

About the Book
"This book is about American politics and law; it is also about the roots of the Contract with America. . . . A logical place to find the intent of the Founders is in Locke, [and] Stephens makes a contribution by highlighting this."  
"This book is about American politics and law; it is also about the roots of the Contract with America. . . . A logical place to find the intent of the Founders is in Locke, [and] Stephens makes a contribution by highlighting this."  

— Newt Gingrich

The most attractive feature of George Stephens' new book is his effort to root present-day controversies about property rights, freedom, and the role of government in the great literature of liberty that is America¹s political heritage. The struggle to liberate our markets and our minds is an old, even an ancient one. Stephens demonstrates that, to prevail in this critical struggle, we must replant the seeds of liberty that John Locke and others found centuries ago and nurture their growth into towering, protective trees of constitutional order.

— John Hood, President, John Locke Foundation
Introduction

FOUNDATIONS AND FAILURES OF THE US GOVERNMENT. Our Founders had the sound idea that government exists to protect property and preserve liberty, giving citizens the freedom to advance themselves through private contracts — but we lost confidence in that view just as the world began to emulate us. This book traces the process...

FOUNDATIONS AND FAILURES OF THE US GOVERNMENT. Our Founders had the sound idea that government exists to protect property and preserve liberty, giving citizens the freedom to advance themselves through private contracts — but we lost confidence in that view just as the world began to emulate us. This book traces the process of winning and losing rights, explores the possibilities for restoration, and concludes that few reforms are likely to be adopted through politics.

We cannot govern ourselves nor secure our rights unless we understand our government’s purpose, but many Americans do not. They tend to define the purpose variously as: to solve society's problems; to maintain order; to help the needy; or to spread wealth. It is none of these; instead, there is the unequivocal statement in the second paragraph of the Declaration of Independence that our government’s function is to secure “life, liberty, and the pursuit of happiness” for its citizens. We tend to gloss over these words thinking, perhaps, that it is nice that the Founders wanted us to be happy. The words are not sentimental; they grant specific rights in property. Life and liberty are easily recognized properties, and the “pursuit of happiness” is a term that held an established meaning familiar to our Founders: the freedom to pursue a career and to enjoy the estate it creates. It is Thomas Jefferson's expanded version of John Locke’s “life, liberty, and estates.” Our civil rights are rights in property.

The property rights indicated are grounded in English Common Law and in the “natural rights” proclaimed by John Locke, the 17th-century English philosopher and the intellectual father of our country, in his Second Treatise of Government. He proposed a definition of the rights of citizens and the purposes of government, and America's founders a century later designed and created a government to protect them. To insure these rights, the Framers of the Constitution put in place various measures, and set specific limits on Congress's taxing and spending powers (limits nullified by the Supreme Court in 1936 but reaffirmed by it in 1995, as will be explained.)

According to Locke and our founding documents that flowed from him, one's rights in property must be respected, and, conversely, one must respect the property rights of others and may not damage their property in pursuit of one's own happiness. The guarantee of property rights for all is to be enforced by government. It is in this sense that "all men are created equal”: equal before the law.

Many American histories and civics books do not identify government's purpose clearly. They do not acknowledge the Founders’ passion for liberal, limited government, perhaps because many of the authors do not favor that kind of government. They therefore concentrate on other topics, such as Jefferson's “agrarianism,” or the separation of church and state; first, we need a straightforward explanation of purpose and rights.

We must pass on our basic ideas of rights and freedom if our society and government are to survive. Our current direction leads toward the increasing chaos of government service to narrow interests. This book reviews the history of the principles upon which the US government was founded and their subsequent treatment, and says that if we follow Locke, the Declaration, and the Constitution, there will be more opportunity to pursue happiness, and the people will be more prosperous. The poor will benefit most, because they most need unrestricted opportunity before the law.

Lockean, limited government will be followed from the Second Treatise through Jefferson and the Declaration of Independence, the Constitution and its Bill of Rights, and through important US Supreme Court cases that have interpreted the principles of the founding documents. Reforms that would restore constitutional government are considered, and the US Supreme CourtÂ’s recent efforts to reinstate it are described.

The Importance of Locke's Second Treatise

While there were many influences on our form of government, Locke’s Second Treatise of Government was a strong one and provides an illuminating guide to the judicial interpretation of civil rights. To explain why government came into being, Locke began by picturing man without government, in a state of nature. There was a society, he suggested, but there was no common judge to settle disputes. It being impossible to enforce the laws of nature against the powerful and selfish, men made a contract between ruler and subjects, according the ruler certain limited powers to protect their property in exchange for their loyalty.

The Founders did not take their principles only from Locke or always directly from him; but they drew on LockeÂ’s spirit always and on his very words at times. They also looked to English Common Law, whose roots extended back to Rome and Greece. The Common Law principles had evolved over centuries; they were what worked for the benefit of people. (And when the English had a chance to secure freedoms, they took the opportunity: as with King John and the Magna Carta in 1215, the Petition of Grievances of 1610, and the English Declaration of Rights of 1689.) According to Jefferson, in writing the early resolutions and the Declaration and the Constitution the Framers "rummaged" through Rushworth’s compilation of English Common Law.

Educated men in England and America in the early 18th century were familiar with Cato’s Letters, which were in the spirit of Locke, criticizing government policy from a Whig (classical liberal) point of view; and Locke's own Second Treatise was a philosophical codification of the Common Law. Concerning the separation of powers, our Founders followed Montesquieu. James Madison, “Father of the Constitution,” insisted that the constitution crafted for the United States must be open to change only by amendment, and that is the procedure the Framers provided. If they had intended otherwise, there would have been no need to write a Constitution; like Great Britain's, the Supreme Law could have been ever-evolving from judicial interpretations and legislation, a “Common Law” constitution.

There is a passage in the Book of Common Prayer’s “Confession” which says: “We have left undone those things we ought to have done; and we have done those things we ought not to have done; and there is no health in us.” The United States Government has often left undone things it ought to have done: effective protection of life, liberty, careers, and estates and the preservation of public order. Conversely, it sometimes has done things it ought not to have done: itself restricting liberty, taking property without compensation, requiring occupational licenses, ineffectively responding to criminal takings, and taking property from its citizens for unproductive and unconstitutional purposes. There is no health in that.

Government has undertaken many tasks which are properly matters of personal choice and of private contract, and which are therefore elements of the individual pursuit of happiness. It was not created to “do good” (except by protecting property), and many people have decided that it does good rather badly. As a result, their discontent has been growing. They have lost the trust they had in the federal government in the days when it protected them, and they seem to be looking for a model that limits government outside of its property protection functions. The one in the Declaration and Constitution is the best ever produced. In any case, the Constitution is the Supreme Law. If we no longer agree with parts of it, we are obliged to amend it — not write the Common Law into it through the courts.

Cycles

In the history of the United States there have been roughly hundred-year-long swings in the US Supreme Court’s and the public’s view of the proper role of government and rights, and the legal treatment of rights in America has changed...


Reviews
Donald J. Boudreaux | More »
Book News, Inc., Portland, OR | More »
Clint Bolick | More »

Pages 224
Year: 2002
LC Classification: KF4541 .S693
Dewey code: 342.73'029
BISAC: LAW018000
Soft Cover
ISBN: 978-1-892941-96-1
Price: USD 21.95
Hard Cover
ISBN: 978-1-892941-97-8
Price: USD 28.95
Ebook
ISBN: 978-1-892941-40-4
Price: USD 28.95
Available from

Search the full text of this book
Related Books
• Letters from France: —   The Private Diplomatic Correspondence of Benjamin Franklin 1776 - 1785
• Alexander Hamilton —   America's Forgotten Founder