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On the Eve of the Election Print E-mail
By Hadley Arkes   
Monday, 25 October 2010

In the photographs that marked the lingering memory of the Great Depression, there was the scene of anxious depositors, massed outside a bank, desperate to retrieve their savings from a bank on the brink of failing. There were also photos of farmers massed to resist the agents of the law, who were trying to foreclose on their farms. With all the inventiveness of artists, it struck me as odd, in retrospect, that no artist had sought to represent on canvass, or in a montage, a scene that would connect these two events and the two embattled crowds: One could have imagined a scene in which the depositors of the banks were marching on the farmers, determined to get back, in repayment, the savings that had been converted, by the banks, into loans to farmers. Cicero caught the connection when he remarked on the passion to cancel debts: What is the meaning, he asked, of an “abolition of debts, except that you buy a farm with my money; that you have the farm, and I have not my money.”

In 1934, that liberal paragon, Justice Louis Brandeis wrote for the Court in striking down a statute that sought to prevent the foreclosure of farms, in effect, by dispossessing the creditors. (Louisville Bank v. Radford)  Even during a time of high stress, the liberal political class at the time recognized the injury that would be done by undoing the obligation of contracts. Not only was there an injustice to the people who had put their own savings at risk. There was also the danger that investors trashed in that way would have no incentive any longer to hazard their money in loans to people of modest means.


    The Great Depression: a bank failure in progress

That sense of the connectedness of things seems to have been lost on the political class of the Left in our own time. And my own sense of what has been driving the anger of people in this election year is an awareness, taking hold, that the political class has truly lost that recognition of the things that connect us across lines of class and income; that they have a truncated view of the economy – and therefore of the world. The administration would undo the contractual obligations of Chrysler, circumvent the laws of bankruptcy, and give preference to the auto unions over the bondholders. And there seemed to be little sense of the damage being done to ordinary people who had pensions and savings at stake in those bonds. Political language is often overheated, but there is nothing overstated in the sense now abroad that this election offers a genuine crisis, a moment of judgment and turning. But apart from the arguments now familiar, I’d suggest that what has been notably missing from the political class of the Left is what a Catholic teaching might have supplied in overcoming that partisan and truncated view of “the economy.”


         Leo XIII: respecting the rights of workers and owners

Americans at the Founding took their primer on the rights of property from John Locke in the Second Treatise on Civil Government:

[E]very man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.

A man would have a claim to the fruits of the labor done with his own hands – but not of course if someone else owned those hands. The claim to property began with the rejection of slavery and the affirmation of the natural freedom of human beings, those distinctly moral beings who could understand the rightful and wrongful uses of their property. But it is curious that so much attention has been given to John Locke and not to the filling out of the argument offered by Leo XIII. The encyclical Rerum Novarum (1891) is usually marked for its concern for working men and women in the industrial age. And yet, strangely overlooked has been the pope’s fuller understanding that natural rights are involved on the side of owners as well, and that certain attempts to inject the power of the state in the name of equity will simply enlarge the powers of the state and do nothing to improve the condition of working people. As Leo XIII put it, “when a man lives sparingly, saves money,” and acquires a business, that business is “only his wages under another form.”  And so, as he said, the socialists:

By endeavoring to transfer the possessions of individuals to the community at large, strike at the interests of every wage-earner, since they would deprive him of the liberty of disposing of his wages, and thereby of all hope and possibility of increasing his resources and of bettering his condition in life. 

In the name now overcoming inequality, the Left has engineered an extension of the powers of the government: There would be a national takeover of medical care, meaning the political management of medicine, with its usual attendants of price controls and rationing. And there would be further controls over banking and credit, all pointing to a world in which investment would hinge ever more on political connections, not on the power to persuade investors weighing the risk of their own money. It all rather bespeaks a political class who have made politics their vocation; a political class with little experience in business, or in the world that most of us inhabit.


Hadley Arkes
is the Ney Professor of Jurisprudence at Amherst College. His most recent book is 
Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law

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written by JBL, October 26, 2010
"The claim to property began with the rejection of slavery and the affirmation of the natural freedom of human beings, those distinctly moral beings who could understand the rightful and wrongful uses of their property."

Prof. Arkes: Whose claim is this? Though you speak here of Americans, you know, of course, that the American hierarchy--and the hierarchy the world over--was not opposed to the institution of slavery absolutely. Or, if they were opposed to it in principle, they were not opposed to it in practice. Not exactly. They did not inhabit the pseudo-Lincolnian mindset that many do today, that slavery is abhorrent and must be expunged at all costs. Rather, they were in favor of a gradualism that comes from a sense of time and eternity; they were, while not comfortable with its evils and evil in general, fully aware that in this life we cannot avoid contact with evil. It is part of our lot here. In any event, it's a small point, but an important one.

So, you must be speaking of Locke's thinking on slavery and private property, no? It certainly ISN'T America's--though the work of variously scholars has served to confuse the two.
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written by James Danielson, October 26, 2010
The passage from Locke quoted here more than suggests concerns the author does not approach. If we each have property interests in our persons that no one else has a right to, and if this extends to the labor of our bodies and the work of our hands, then all coercive taxation is theft. Not even appeals to the common good can polish up the rude reality that a class of people claiming the right to wrest our property from us by force is a band of robbers. But we have no such appeal, for neither left nor right in our political "order" acts in defense of the common good. So, if the prediction holds, in November voters will transfer the State's confiscatory power from one party of thieves to another. The nature of the plunder will change, but the plunder will continue.
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written by Ray Hunkins, October 26, 2010
Thanks, in part, to you and your colleagues, there is more and better teaching going on now than during most of my 72 years. Unfortunately, it is mostly adult education. In our public schools and colleges, and even in our professional schools, teaching is either from the perspective of the left, or is philosophically agnostic. Thus, for example, we receive justice from a judicial system directed by lawyers who, for the most part, have little or no familiarity with the philosophy underpinning the law, or for that matter, any philosophy. Is it any wonder then, that nationwide the sanctity of contract and the rule of law is undermined? Is it surprising that a personal view of what is "equitable" has become the preferred method of passing on great and small controversies? A long journey starts with the first step. Thanks to you and others who write on these pages and who teach elsewhere, the first step is behind us.
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written by Hadley Arkes, October 26, 2010
I’d thank JBL for his note, and he is right on two points: the question of slavery in the Church is an apt one, but in the scale of things it is also, as he says, not an especially important one. In fact, it is a point that threatens to distract from the moral questions right on the line, before us. On his first point: It is worth recalling that Thomas Jefferson was an owner of slaves, though he also gave us the proposition “all men are created equal,” and put in place the premises that called slavery into question, for himself as well as others. John Locke, as I recall, owned stock in plantations that used slaves. It is not surprising that people could articulate principles that ran beyond their own flawed lives—and took hold in the larger world. Thomas Aquinas was clear that slavery was in opposition to the natural law, and the Church was strong in condemning slavery at least from the 15th century on. Leo XIII, whom I mentioned, urged the bishops in Brazil to take steps to remove the vestiges of slavery in their country, and he put the weight of his office behind the opposition to slavery elsewhere in the world. There is a tangled story of Pius IX and Jefferson Davis, the President of the slave republic of the Confederacy; but as JBL no doubt knows, it’s a story that lends itself to careful telling and disentangling.
But I post the caution again: we can trace the turns of doctrine and teaching in the Church on slavery, and yet nothing in those turns, or in the lives of Jefferson and Locke, alters the understanding about the moral ground that justifies and limits rights of property. We have to face the question, today as ever, on its own terms. And if Leo XIII had it right, the Church has been teaching something for a long while that runs beyond the clichés of liberalism in our own time.
With Mr Danielson I’d point out that it was well understood, in this classic understanding, that any taxation that could not be justified offered a version of legalized theft. But that did not mean that the community could never lay fair charges on its members to meet the responsibilities borne distinctly by the community. Not all taxation is theft. The question here, as with any other use of the law, is whether the law is restricting our freedom, taking our property, with or without justification. The critical test, as ever, is the test of moral justification. We’re back, that is, to the “laws of reason and nature.”

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