Review of Tim Sandefur’s The Right to Earn a Living, Economic Freedom and the Law (Washington, D.C., Cato Institute, 2011). $25.95
By Tibor R. Machan
Tim Sandefur’s The Right to Earn a Living is so far as I can judge a flawless, superb discussion of how a proper understanding of American constitutional law implies that in this country everyone has a basic right to earn a living. Although this isn’t my specialty, I am well enough versed to be able to tell that Sandefur has a far better handle on the issue than, say, Cass Sunstein or all those who keep defending the contrary thesis in, say, The New York Review of Books.
I have been following Mr. Sandefur’s career for a while—he has given lectures in my university’s law school, which he also attended after doing his undergraduate studies at Hillsdale College in Michigan. The lectures he has given that I have heard have been excellent--clear and well informed, passionate yet also intellectually well crafted. This to my knowledge is his second book for the same publisher, the Cato Institute, where his Cornerstone of Liberty: Property Rights in 21st Century America came out in 2006.
Although most of this book focuses on the law—and Sandefur explores thoroughly the way the law in America has been influenced by ideas completely alien to the nation’s political-economic tradition (e.g., by that thoroughly misnamed movement, progressivism)—there is an underlying normative thrust to it on which the legal philosophy of the author rests. That normative thrust is Lockean natural rights theory.
As the author makes clear, the right to earn a living is actually implied by the American founders' reworking of John Locke’s list of natural rights, as per James Madison’s rendering in the Virginia Declaration of Rights where we are told that “all men are by nature equally free and independent, and have certain inherent rights.” These include “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursing and obtaining happiness and safety.”
I find the book so agreeable that I will now spend just a few paragraphs discussing one possible misunderstanding that could arise from its title and some of what the author says in the spirit of that title. Much of the work is spent on discussing legal, in particular constitutional, topics focused on private property rights. The history of the U. S. Supreme Court’s way of addressing the topic is not a very pretty picture and may even raise the question of what is the use of a written constitution if justices are going to vacillate so drastically in how they read it. Isn’t a written constitution supposed to facilitate stability and predictability in a country’s legal affairs so citizens can make long range decisions?
Let me leave this issue to the likes of Mr. Sandefur, who focus their attention more on jurisprudence than on general political philosophy. I do wish now to address one area of basic political philosophy that some elements of this book leaves unexplored, namely, just how intimate is the connection between earning a living and ownership.
Quite a few people, both now and in the past, defend the right to private property, to individual ownership, based on the idea that whatever one earns—or creates, or makes, or produces—surely is one’s own property and others have no right to it. And up to a point this carries conviction but it doesn’t at all go far enough. The problem is that there is a lot that an individual owns without having earned--made, created, or produced—it. Yet it still is one’s private property and no one is authorized to take it from one. By risking leaving the impression that ownership arises from having earned what one owns, one may be taken to suggest that only if one has earned what one owns can it be legitimately one’s property. And this suggestion will then be exploited by those who would just as soon confiscate from individuals any property they have not earned—such as what they have inherited.
Let’s start with the simple cases. How about one’s second eye that another may well have great use for? Or one’s second kidney? Or indeed one’s heart if one is some kind of no good, lazy loafer and another who’s an ambitious genius with noble aspirations to save the world could make good use of? Then what about what one was given as a gift? Not always earned at all! Or what about what one has found, free and clear, by chance?
There are quite a few political philosophers and theorists, even moralists, whose views imply that if you didn’t earn it, others are entirely free to take it from you. And if what you own is not being put to proper use, then, too, it can be confiscated by the authorities and transferred to someone who is deemed to make wiser use of it. The famous City of New London, CT v. Kelo U. S. Supreme Court case (of July 2005) whereby city bureaucrats confiscated private property from citizens and gave it to others was decided on such spurious grounds. In the famous Harvard University professor John Rawls’ book, A Theory of Justice (Harvard University Press, 1971) the same idea emerges. Because no one actually earns all of his or her assets in life but comes by them through luck or fortunate upbringing, there is nothing objectionable in depriving people of what they are taken to own. After all, as Rawls put it, “The assertions that a man deserves the superior character that enables him to make the effort to cultivate his abilities is … problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim now credit” (104).
Nothing at all follows about other people having the authority to take from one something one hasn’t come by through hard work, through having actually earned, produced, or made it all. That’s plainly a non-sequitor. Only if one came by something through theft, extortion, robbery, burglary or similar violation of another’s rights is there justification for such taking.
Yes, one way to come to own something is by having produced or earned it—something that is made very clear in Sandefur’s book—but there are others, including having been born with it, having it as part of one’s very identity as the human individual who one happens to be, or having been given it. That’s enough. Others just have no warrant for butting in, however great their goals, be it the will of the people or of wise leaders or anything like that.
Private property rights flow from one’s having an unalienable right to one’s life, a life that is one’s own and no one else’s, not the family’s, not the tribe’s, not the clan’s, nor of the nation or community or some other group of other people who already own exactly what they have a right to, namely, their own lives. Sandefur suggests nothing other than this but still, it is important to make clear that it would be to misunderstand the nature of property rights to suggest that only when one earns property is it in fact one’s property.
So having come by something without having stolen or extorted it from someone is plenty or warrant for owning it. And then, of course, if one has put one’s mind to making good use of something no one else owns, that is also an excellent reason to be deemed its owner. It is also one of the best incentives for productive work.
All the supposed scholarship favoring collective, public, or community ownership results, mostly, in providing some private individuals with free goods—a type of rent seeking—who want to confiscate the property of other private individuals under the illusion or guise that they represent the public or the general will or some fathom entity like that. No, those groups are no more than a group of other people who want what doesn’t belong to them. Mostly they wish to promote the idea through the myth of the superior importance of the greater numbers. But there’s no substance to it—millions of people can all be plain takers, lead by misguided thinkers who just want to come by wealth without having to meet the terms of those who own it.
The right to private property applies not only to owning what one has created—although few of us create something entirely anew, from scratch—but also to what emanates from us, from who we are. So if by total accident I am a good-looking bloke and can cash in on it by getting a paid appearance on the cover of GQ, nobody is justified to take from me of my proceeds, not my neighbor, not the government, no one.
Some defenders of our private property rights are tempted to link ownership rights too intimately to merit but that’s folly for we are not always the owners of things—including our lives and limbs as well as much else we own free and clear—as a matter of merit. It can all still be our property if it isn’t anyone else’s. And whatever we do own others better keep away from unless we permit them to do otherwise. Any system of “laws” that fails to heed this point is, as Mr. Sandefur demonstrates in this excellent volume, ultimately illegitimate.