Two of Ronald Reagan’s lower-court appointments went down in flames. One was Jefferson Sessions, whose nomination never made it to the Senate floor. Another was our colleague Bernard H. Siegan, Distinguished Professor of Law at the University of San Diego, who died Monday at the age of 82. Bernie’s nomination was defeated in committee in 1988 on a party-line vote (making him the first “borking” victim after Bork).
Sessions went on to be elected to the U.S. Senate in 1996 and reelected in 2002–quite a feat for a person accused of being out of the mainstream. Bernie, a kind and gentle soul, took a somewhat different direction. He changed the way America understood a fundamental human right.
Bernie Siegan was a stalwart voice for economic liberty under the Constitution. A law professor at San Diego from 1973 until his death this week, Siegan’s books and articles–and his winsome but tireless public speaking–made him one of the key legal and constitutional thinkers in the movement of ideas which became the Reagan Revolution.
Richard Epstein at the University of Chicago Law School calls Bernie’s Economic Liberties and the Constitution the opening salvo in the revival of the property-rights movement. “With great attention to historical detail,” Epstein says, “Siegan effectively questioned the conventional wisdom of the day that Congress and the States had broad powers to restrict the use of property rights. He was a wise and humane figure.”
Bernie’s unconventional idea can be summarized, with just a little bit of license, this way: What’s yours is yours, what’s mine is mine, and the government does not have unlimited power to take that property or to tell us what to do with it.
Who could have given him such a crazy idea? Well, James Madison for one. Madison wrote:
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
Bernie set out in the 1970s to convince the country that the right to private property and the right to earn an honest living in the marketplace were every bit as important as the right to free speech and the right to vote. By the 1990s, Bernie’s ideas were becoming increasingly well known–not just in conservative and libertarian think tanks, but in wider legal circles. A movement was being born.
In 1991, the Institute for Justice, a libertarian public-interest law firm, was founded in Washington in significant part to pursue Bernie’s vision and that of fellow thinkers in the property rights movement. Other conservative public-interest law firms around the country soon joined in.
The greatest victories so far have been in the minds and hearts of Americans. No longer is the idea of “property rights” hopelessly out of date. To the mantra that property rights should always take second place to human rights, there is a cogent reply: Property rights are human rights. This is well understood in the former Communist lands. It is also becoming increasingly well understood in Detroit and in New London, Connecticut.
The Michigan supreme court’s 2004 decision in County of Wayne v. Hathcock is one of the more tangible victories of the movement to date. In that case, the court overruled its infamous 1981 Poletown decision, which had allowed the City of Detroit to bulldoze an entire neighborhood with more than 1,000 homes, 600 businesses, and a number of churches, so General Motors could build an auto plant. Calling Poletown “a radical departure from fundamental constitutional principles,” the court acted “in order to vindicate our constitution, protect the people’s property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.”
Kelo v. City of New London, a case uncomfortably similar to Poletown, was, of course, a major setback before the U.S. Supreme Court. But Kelo had four dissenters–something that would have been unthinkable in the days before Bernie Siegan and the property-rights movement. And the overwhelmingly negative public reaction to Kelo is likely, if anything, to strengthen Americans’ insistence on fundamental property rights and basic economic liberties.
Bernie Siegan was a sweet, funny, optimistic man. We wish we could have kept this gentle Reagan Revolutionary with us a little longer.
–Gail Heriot and Maimon Schwarzschild are professors of law at the University of San Diego.