Submitted for comment, the below is a portion of a long piece I’ve been working on for some time on the role of government in the modern U.S. economy, including its role in addressing the limited problems with inequality of wealth. In the first part of the portion below, I sketch the argument in favor of the moral right to property. In the second part, I explain how certain forms of wealth prevalent in a modern economy do not possess the same moral quality, or at least not to the same degree.
I welcome your thoughts.
In a series of posts earlier this year, I explored whether the concept of positive rights is intelligible in the context of the negative rights framework implicit in American constitutionalism. Attempting to make the point clear, I posed the following hypothetical:
[I]f we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water—part of your “rights” to basic food, water, and health care? Can negative and positive rights co-exist?
One possible objection to this sort of hypothetical is to contend that a negative-rights-only approach is morally deficient as failing to comply with supererogatory duties (i.e., Good Samaritan-ism). But this objection seems to me misguided. This is a religious duty, not a political one, and religious duties do not conveniently translate to legal rights.
Nonetheless, negative rights do arise from developed moral frameworks. In our desert island hypothetical, the question presented is whether my presumed property right holds as against your situation and your asserted rights to food, water, and health care. My property right is implicit in the nature of man and the logic of morals: I worked to acquire it, I maintain it in my possession against all others, and I openly advertise my dominion over it. Thus, no others may take it without justification. This, then, is the definition of a “right”: It is a claim whose violation requires an explanation in terms of moral logic.
Does any justification exist here? Note the vagueness in the hypothetical: I did not specify how long you had been without food and water, or the nature of your medical needs, or whether drinkable water might be otherwise accessible, even if perhaps less convenient. The very logic of law and of morals requires the giving of reasons amounting to a justification to defeat the claim. There are none supplied by the facts given here.
Further still, weighing against any duties I may have to you and your situation are my competing duties to look after the health and welfare of myself and my family, as well as to others who may be in greater need than you. I am a steward of my possessions, a fiduciary with respect to any moral claims in them. They are the talents entrusted to me, and it is my duty to wisely and faithfully preserve and invest them. I must not yield my charge for light and transient causes, or for reasons we cannot be troubled even to articulate.
Property rights, then, have moral significance. A discussion about inequality involves the serious moral question of whether and under what circumstances an individual should be denied or divested of property rights. It is often a discussion infused primarily with economic rather than moral significance, and for this reason, the wrong kinds of reasons are often incorrectly deemed to pass muster. My moral right to the crops I sowed and reaped to feed my family might yield in light of the starving traveler at my door. But that same moral right will not yield to economic theories about aggregate demand and stabilizing the national price of wheat. Economic theories and other low arts of prediction are contingent on a variety of highly mutable conditions. They cannot begin to provide justifications to defeat property rights.
As we can see, not all reasons rise to the level of a justification to deprive another’s moral right to property. But neither is all property infused with moral significance. In a subsistence economy, man wrests his possessions from the earth with great toil and protects them with his life against thieves and predators. Wealth inequality is not an issue here. An acre of earth will yield the same crop to one farmer as it does to another, save only for the farmers’ natural difference in prowess and efforts in cultivation. These differences will be slight, and the crop yielded him will be his own by moral right.
In a developed economy such as ours, however, possessions are obtained through very different means. Most individuals don’t spend their productive energies growing, catching, gathering, or making things. And when they are, it often is in an atomistic sense that bears little relationship to the whole. Because our economic activity bears little obvious relation to the ultimate goods and services, it is impossible, for practical purposes, to discern the relationship between our economic activity and our consumption of goods and services obtained from others. Most people can fathom the conversion from bushels of corn to dozens of eggs, say, but not the conversion from bushels to Subarus. Not to mention the fact that both things are so highly regulated, subsidized, and tariffed that it would take all sorts of experts in agriculture, engineering, law, political science, accounting, and so on, to even begin assembling a meaningful comparison.
Even Elihu Root was late in observing this progression, which had begun in earnest at least a century earlier. In The Market Revolution in America, John Lauritz Larson writes that as early as the founding community-based economies were losing their primacy as regional economies and then a national economy assumed the spotlight:
Without anybody wishing it so, the increasing scope of commercial transactions, the specialized divisions of labor, the growing distance between buyers and sellers, the institutionalization of relations, and the proliferation of intermediaries disembedded individual transactions from contexts in which the common welfare or “commonwealth” of whole communities once had seemed self-evident. Not that folks were any more (or less) inclined to abuse their neighbors, but how was one to know who was his neighbor in a complicated nexus of actors and agents he never saw or knew by name, where prices, commissions, and the terms of trade seemed always to be set by somebody else? This was, of course, the genius of the free commercial marketplace: It depersonalized transactions, stripped them of all but economic information, and opened the game to anyone with something to sell or the wherewithal to buy.
Today one cannot even begin to understand the correlation between sitting in front of a computer 40 hours a week and the objects of middle-class consumption: a mortgage, car payments, health insurance premiums, student loan payments, a vacation once or twice a year, a pension, and so on. The exchange rates between inputs and outputs are purely theoretical. And, unless you implicitly accept that market economics fairly determines these exchange rates, it is hardly surprising that many people conclude that standards of living must be set from the top down.
Does the banker who profits from “flash trades” have a moral right to the profit one of his computers made after making an “offer” to another computer? Does the banker who takes zero-interest loans from the Fed and buys Treasury bonds at three percent have a moral right to the profit gleaned solely by virtue of his industry’s proximity to governmental power?
It is clear that there is a great deal of wealth in this country that is “property” in a legal sense but which appears to have lost its moral significance. With respect to this wealth, economic reasons may suffice to justify confiscation and redistribution.
I recently finished Gabriel Kolko’s 
