Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

The Commodity View of Property Rights Promotes Prosperity, Peace, and Liberty

Bradley Smith is associate professor of law at Capital University Law School, Columbus, Ohio.

To discuss the meaning of property is, in many ways, to discuss the meaning of liberty. If property is an individual right, secure from encroachment by government, then government power is necessarily restricted by the existence of property. If, on the other hand, property is merely a private basis for creating a public good, then government has a right, and at times even a duty, to dictate or regulate its use.

In Commodity and Propriety, Cornell University law professor Gregory Alexander chronicles the history of this debate in America. Alexander argues that in colonial America, most lawyers, if not most citizens, believed that the role of property was to provide for the “public good.” Property, especially land, filled this role by anchoring the citizen to his “rightful” place in society, thereby promoting social stability.

What individuals gained from holding property was not independence from government, but rather independence from the swings and roundabouts of the marketplace. With this independence, however, came a duty to use property to further alleged societal interests. If one failed to properly use his property, the state could compel him to act for the public good. This is the “proprietarian” view of property.

During the American Revolution, views on the role of property shifted dramatically. A new conception of property, as an alienable market commodity, took root. In this “commodity” conception, property serves to define the “legal and political sphere in which individuals are free to pursue their own private agendas and satisfy their own preferences, free from government coercion or other forms of external interference.” Alexander suggests that the last 200 years have been marked by an ongoing dialectic in which the proprietarian and commoditarian views are continually refined in response to concrete legal and social issues of the time.

To trace this history is an enormous task. Alexander reviews 200-plus years of thinking from David Hume, Adam Smith, and John Adams, through F.A. Hayek, Michael Harrington, and Justice William Brennan. In doing so, he offers up some controversial propositions. For example, while classical liberals have usually turned to Thomas Jefferson for political inspiration, Alexander portrays Jefferson’s antagonist Alexander Hamilton as the true father of the individual rights-oriented, commodity view of property in America. It was Hamilton, not Jefferson, who recognized and promoted property rights in intangible objects such as securities and even vested interests. It was Hamilton who envisioned America not as a stable, agrarian society of individuals tied to the land, but as “a society of great wealth and power whose life blood was the class of enterprising merchants [with] none of the vestiges of feudal society to inhibit [their] entrepreneurial strivings.”

On the other hand, modern liberals, who like to point to slavery as a great evil of laissez-faire capitalism, will find Alexander correctly demonstrating how the philosophy of slavery reflected proprietarian views of property. The abolition of slavery was a triumph for the classical liberal, commoditarian view.

Despite such triumphs, the commoditarian view has never vanquished the proprietarian view. The common perception that property in America has always been considered a basic individual right, to be held free from the powers of government, is simply not true, says Alexander. Readers of this magazine may wish it were so, but a quick look at recent EPA regulations in the Federal Register demonstrates his point.

Still, the strength of the commodity vision has been such that in the late twentieth century those who favor the activist state have sometimes abandoned proprietarian rhetoric and attempted to put their theories into commodity terms. This is seen in efforts to define a commoditarian type “right” to welfare, health care, or other government benefits.

What Alexander’s book lacks is a sense of passion. Though describing a great clash of ideas, there is little sense of drama or energy in these pages. Alexander reports the theories as equals, with little seeming interest in which view ought to prevail, or even in evaluating the merits of the arguments he describes. It must fall to others to demonstrate why and how a classical liberal view—the commodity conception of property rights—promotes prosperity, peace, and liberty.