Which Rights to Alienate?

“W hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”. So reads the Declaration of Independence, one of the most forceful and consequential enunciations of natural rights theory. Note the word “unalienable”; it means that these rights cannot be given up. No one can sell or give away these rights on their own behalf or on their children’s behalf, according to the Declaration. And to this day, we outlaw gladiatorial combat and indentured servitude in deference to this principle. It is also why we have bankruptcy laws instead of debtor’s prisons, and that children do not have to inherit the debts of their parents (accept as a lien against the value of their inheritance).

I repeat: the term unalienable implies that these rights cannot even be given away voluntarily. We have a restriction on the right of contract. Voluntary contract does not make all things morally right – especially if such contractual obligations are extended to children and unborn generations.

The Founders declared Life, Liberty and the Pursuit of Happiness to be unalienable rights because they could. If no one murders, all have the right to Life. If no one enslaves, all have Liberty. If everyone minds their own business (drug warriors, take note), all have the right to Pursue Happiness.

The “other” natural rights have to be alienable to some degree. As I have already shown, these rights get in each other’s way as the population rises. The question arises as to which rights to alienate and who loses what?

Consider the thorny problem of private ownership of land and other natural resources. Private property allows for efficient use of land and, to some degree, environmental preservation; however, it also takes away the pre-existing rights of foraging and the Walkabout. Those who own land have more rights than those who do not. In modern times, this is reflected by having a price on land. If you want more land, you have to pay for it in exchange for the property rights lost by the seller. This is all well and good, but what about the right of first ownership? Is it first come, first serve? Is it right of conquest?

Many in the natural rights tradition ascribe to an idea that goes back at least to John Locke: that the first person to mix his labor with the land gets to keep it. That is, a pioneer gets to keep the land he clears. This is because he owns his body and the fruits of his labor until he should choose to sell or give it away. If we are only concerned with the “classical” natural rights of the second section of this chapter, we are on a strong footing. To take away the value added to the land of someone who cleared it for farming is to commit theft.

The real difficulty with this approach to original land ownership is that there is more value to land than that added by the person whose labor “improves” the land. In the case of a lumber company, the labor may well subtract value from the land as old growth timber is harvested. And in the case of a farmer who sets up a farm on a plot of land that later turns out to be on top on an oil field, the descendent of the farmer gets a very unfair share of the world’s natural resources.

Another approach to this problem is to make the original owners of land pay a price to society in general by buying land at auction from the government (which at least in theory provides services to society). This was tried at times during American history, but in practice the auctions were rigged in favor of those who came in on the first-to-mix labor basis. Those who had the land on the first come, first served basis (the Native Americans) had their land rights heavily reduced with little compensation – to put it mildly.

Regardless of how first ownership is determined, the result is that some natural rights are alienated, and these alienations are passed on to future generations. If your grandfather sold the family farm for a song to the coal company, you are out of luck.

Is this right? Or should each generation separately receive compensation for rights given up? If so, we have a natural rights basis for a limited “welfare right”(!) Those who own property and/or exploit natural resources beyond a median share can be morally taxed at the rate of the rent on this extra share, the value of which could go to an equal dividend to all. This provides something of a non-zero poverty floor without anyone having to prove poverty. (The importance of this last phrase is explored in the series Welfare That Works.) However, this tax should not extend to the value added to the land by human labor, since people own the right of the fruits of their labor because they own themselves.

If I understand the secondary sources correctly, this is the idea put forth by Henry George in his “Progress and Poverty.” However, I cannot say for certain as I have not read this book, yet.

Another place where these ideas can be found is in the Bible(!) The right of the poor (or anyone, for that matter) to glean the fields is a rather elegant substitute for the right of foraging. The law of Jubilee Year makes explicit the difference between human generated wealth and wealth implicit in nature. See God's Welfare System for details.

Update (October 2018): in the years since I first wrote this series, I have lost much of my enthusiasm for Henry George's Single Tax idea. Done too aggressively, it creates a Use it or Lose it dynamic for land ownership. I rather like the idea of having some private parklands and nature preserves. I detail some other other problems with the Single Tax in my book. (See the ad below.)