November 9, 2006
Thomas Jefferson's Property Theory
I've been doing some reading on Thomas Jefferson's views on property. Jefferson is a notoriously difficult thinker to pin down, and his writings on property in some ways seem inconsistent. I should note upfront that I am not in any way, shape, or form a Jefferson expert. But from my non-expert perspective, I think it is possible to attribute a fairly coherent theory of property that has some very attractive features that can be applied to present-day property issues.
Jefferson was both a fan and a skeptic of property rights. On the plus side, Jefferson’s republican political thought venerated small landowners (particularly small farmers), and Jefferson thought that property ownership was essential to good citizenship. As a result, Jefferson proposed in Notes on the State of Virginia that “Every person of full age neither owning nor having owned  acres of land, shall be entitled to an appropriation of  acres in full and absolute dominion, and no other person shall be capable of taking an appropriation.” In this context, Jefferson had in mind distribution of currently unowned or unused land on the frontier, not redistribution of property that was currently being put to productive use.
Jefferson also was a fan of Locke -- he toted around portraits of his “trinity,” the three philosophers that he thought of as history’s greatest thinkers: Bacon, Locke, and Newton. But while Locke's thinking on property was undoubtedly familiar to Jefferson, Jefferson did not share the view often attributed to Locke (perhaps mistakenly) that justly acquired property should be treated as inviolable. In his famous Rights of Usufruct and Future Generations, a letter to James Madison, Jefferson wrote:
I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be reverse of our principle.
This passage, like the rest of this letter, largely concerns intergenerational justice. Jefferson states fairly clearly his view that there is no natural right to inheritance. I do not think, though, that Jefferson was hostile to the basic structure of inheritance. The real target of Jefferson's ire in Rights of Usufruct isn't inheritance per se, but intergenerational debt and hereditary aristocratic privileges.
Jefferson began his discussion with a question: “Whether one generation of men has a right to bind another?” The use of “bind” here is consistent with Jefferson’s focus on debt. Jefferson answers the question with this principle: “the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it.” As a result, when a person dies, that person’s property “reverts to the society.” But what happens then? Absent a legal system, the property will pass to the next “first occupants.” And who might they be? Typically, “the wife and children of the decedent.” So Jefferson does not appear to be hostile to the basic notion of ownership going to the first person to occupy the property. Nor does Jefferson appear to be hostile to the result of the property going to the decedent’s spouse and children.
If the society has a legal system, then the property will pass to a child, legatee, or creditor according to positive law, not natural right. In the abstract, therefore, Jefferson can be seen as not being opposed on natural law grounds to a system of redistribution of property on death. It seems unlikely to me, however, that Jefferson actually would have supported such a system, and it is clear from the rest of the letter that ordinary inheritance is not his real target. Rather, he immediately focuses on the ability of intergenerational debt to “eat up” the productivity of land for several generations. By passing debt to the next generation, a current owner arguably takes the part of the productive use from the next generation and transfers it to the present generation. To prevent this outcome, Jefferson later in the letter proposes limiting the term of debt to the length of one generation.
Jefferson’s point about intergenerational debt translates well to current debate about environmental issues, especially soil erosion. Overuse of the land can take productive use of property from future generations, and Jefferson’s position in “Rights of Usufruct” has been used by advocates of sustainable land use.
Near the end of Rights of Usufruct, Jefferson discussed another type of intergenerational burden: systems of ownership passed from one generation to another.
This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions Whether the nation may change the descent of lands holden in tail? Whether they may change the appropriation of lands given antiently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity? Whether they may abolish the charges and privileges attached on lands, including the whole catalogue ecclesiastical and feudal? It goes to hereditary offices, authorities and jurisdictions; to hereditary orders, distinctions and appellations; to perpetual monopolies in commerce, the arts or sciences; with a long train of et ceteras: and it renders the question of reimbursement a question of generosity and not of right. In all these cases the legislature of the day could authorize such appropriations and establishments for their own time, but no longer; and the present holders, even where they or their ancestors have purchased, are in the case of bona fide purchasers of what the seller had no right to convey. (my emphasis)
Jefferson here is talking about property law reform. The “change [in the] descent of lands holden in tail” Jefferson had in mind likely was the outright abolition of ownership in tail, which would prevent a family from using this device to keep land (and the power that went with it) from being transferred to outsiders. The rest of Jefferson’s list is a series of other forms of hereditary ownership of property and privileges. At the end of the paragraph, Jefferson suggests that the state can make these changes with or without making compensation to the owners because there is no right to pass these entitlements from generation to generation. Implicit in his reference to compensation in the passage underlined above, though, is the suggestion that in other context property owners were entitled to compensation for taken property as of right.
Tying this all together, Jefferson appears to be in favor of the idea of property generally. His proposal in Notes on the State of Virginia suggest a republican-egalitarian view that all citizens should at least have some property. He seemed to view property, at least in the intergenerational context, as the product of positive law, not natural rights. He also appears to be hostile to intergenerational debt and some forms of hereditary ownership that perpetuated the concentration of wealth, and thought that property law could be reformed in progressive ways without incurring takings liability.
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Ben - thanks for a superb essay on Jefferson's view of property. I think your review is timely, given the way that modern hyper-Lockeans of the anti-environmental side (read: PLF and the so-called "property rights" cabal) want to read Jefferson's views as enshrining libertarian conceptions of property in the Constitution.
I think you are correct in your summation and it bears repeating: Jefferson's conception of property was republican-egalitarian, not libertarian-natural law. Property is the result of civil society in positive law. There is great danger in the concentration of wealth in the form of property and in the subsequent emiseration and indebtedness of poorer citizens. While Jefferson is not what us modern egalitarian-liberals would want him to be, he is certainly not the libertarian some would make him to be.
Posted by: Kurt Paulsen | Nov 10, 2006 4:51:29 AM
I believe that Jefferson's point is that the natural right of man to property is inalienable and "that the earth belongs in usufruct to the living" is primary to orderly maintenance of a liberal society; that property, when left in tail, has rights only to the extent of the natural rights of mankind. When commerce usurps the right of property they have obligation to provide accommodation for the lose of use of the property for the purpose of the natural citizen to protect their unalienable rights. Property was considered a unalienable right as that man cannot protect life and liberty without it. He was not contradictory in his philosophy, merely nuanced as to specifically how to protect both common law property rights in its submission to mans natural right of property.
Posted by: DonJon | Feb 17, 2009 9:52:09 PM
I came to this debate spurred by a N.Y Magazine Times article by Jeffery Rosen, "Radical Constitutionalism" about the Tea Party and their ideological underpinnings, if there are any. In that article Rosen discussed a book by a W. Cleon Skousen, “The 5,000-Year Leap” which Rosen says has been an inspiration to Glenn Beck and many in the Tea Party Movement. Rosen wrote:
“The 5,000-Year Leap,” argued that the founding fathers rejected collectivist “European” philosophies and instead derived their divinely inspired principles of limited government from fifth-century Anglo-Saxon chieftains, who in turn modeled themselves on the Biblical tribes of ancient Israel. Skousen, a Mormon who died in 2006 at 92, was for years dismissed by many mainstream conservatives, including William F. Buckley Jr., as a conspiracy-mongering extremist; he was also eventually criticized by the Mormon Church. A vocal supporter of the John Birch Society, Skousen argued that a dynastic cabal, including international bankers like the Rockefellers and J. P. Morgan, conspired to manipulate both Communism and Fascism to promote a one-world government.
Skousen’s vision of the Constitution was no less extreme. Starting more than 60 years ago with his first book, “Prophecy and Modern Times,” he wrote several volumes about the providential view of the U.S. Constitution set out in Mormon scripture, which sees the Constitution as divinely inspired and on the verge of destruction and the Mormon Church as its salvation. Skousen saw limited government as not only an ethnic idea, rooted in the Anglo-Saxons, but also as a Christian one, embodied in the idea of unalienable rights and duties that derive from God, and he insisted that the founders’ “religious precepts turned out to be the heart and soul of the entire American political philosophy.”
Karl Marx was not born yet in 1776. It was the Age of the Enlightenment and the Age of Reason. It was a time in which all institutions came into question, especially the royalty and the church that had often supported that rule. Europe and the Colonies were questioning the “Divine Right of Kings”, and the American Revolution and American Constitution were a direct result of that thinking.
I find it very interesting that Jefferson dropped property as a basic unalienable right and substituted "the pursuit of happiness". In my opinion I think Jefferson and many of the framers of the Constitution, despite being mostly men of the "propertied class" saw property intuitively as being "problematic" as a natural right. After all, it was the king who granted property through his divine right to rule. Furthermore, if a right was part of natural law innate by the sole act of birth and if god granted these innate rights in an egalitarian manner, then who among men could claim that God had given them a superior right to property over other men.
Posted by: Al Price | Dec 9, 2010 11:51:11 AM
Have you read anything that is any good on debt and obligations as property rights?
Posted by: Alex Beeman | Jan 22, 2013 10:18:01 AM
Just another one of many contradictions between Jefferson's words and his actions. He could talk the talk, but could not walk the walk. The man was smart, but his hypocrisy was breathtaking.
Posted by: TH | Feb 14, 2013 12:32:03 PM