Property and Freedom

Bernard H Siegen
Professor of Law, University of San Diego

Bernard H SiegenBernard H. Siegen is the professor of law at the University of San Diego.

Below are excerpts from some of the other speeches delivered at the Center for Constructive Alternatives and Ludwig von Mises Lecture Series seminar, “Between Power and Liberty: Economics and the Law,” on the Hillsdale College campus in March. All the speeches delivered at this seminar will appear in Volume 25 of the College’s Champions of Freedom series, which will be available in November 1997.

The late 1980s was an eventful period in the history of property rights. In 1987, the U.S. Supreme Court issued three opinions substantially elevating the Constitutional protection of property rights. Two years later, communism, the ideology that rejected and condemned private ownership, collapsed in all Eastern European nations, and with it the idea that government could successfully plan and regulate a nation’s economy.

In the 1987 and subsequent property decisions, the Supreme Court implemented the Framers’ intention to create a divided and limited government premised on private ownership, enterprise and investment. The communist collapse confirmed the Framers’ great wisdom in selecting this form of government.

The experience of the nations that have emerged from communism reveals that the degree of the transition from a command to free economy will determine the success of an economy. Consider, for example, the economic situation in the Czech Republic and in Bulgaria. As of early 1997, the Czech Republic had privatized 80 to 90 percent of its economy. The amount of privatization in Bulgaria was less than 10 percent. The Czech Republic has a booming economy and Bulgaria has a very depressed one.

Our Constitution provides more specific protections for the right of ownership than for any other right. It is true that the Supreme Court has not always faithfully followed the intentions of the Framers of the Constitution. The Framers would not be surprised that this has occurred, for they believed that government was an imperfect institution, no better and no worse than we are. This is the reason why they divided and limited government power. At times, the judicial branch has seriously erred in carrying out its responsibilities, but so have the other two branches of government. We should be wary, therefore, of current proposals to give unlimited power over property to Congress, the state legislators, or city councils.