A New Conservative Message of Liberty

Last week, President Bush used broad strokes to paint a powerful conservative agenda for conservative ideals at home and overseas. This forum will hopefully host a discussion on some of the legal merits and challenges of this agenda.

The lynchpin of the President's aggressive conservative agenda is his pursuit of an Ownership Society, both at home and abroad. In policy terms, this seems to mean immediate pursuits of tax reform and social security privatization. Less interesting to me than the first pieces of legislation to be passed under the banner of Ownership Society are the legal ramifications of a movement to concentrate different types of property ownership in the hands of individuals.

A core ideal of conservative political thought is minimal government. An ownership society, in its purest form, helps pursue this goal. The substantive due process doctrine of the last 130 years has been any thing but clear. A consistent theme, though, is that certain institutions should primarily be ruled by laws created by individuals, while certain domains remain ripe for governmental intrusion.

In the Lochner era, the Supreme Court prevented state governments from intruding into the legal relationships privately erected to govern individual conduct. Where two or more people entered into a contract, the Supreme Court was willing to displace a governmental aim for a set of private laws constructed over the zones controlled by individuals. Thus, bakeries and bakers were free to set the law governing their private spheres of influence, outside of governmental intrusion. Even when the level of scrutiny at use in evaluating governmental intrusions into private law relationships was lowered in Nebbia and Lee Optical, the Court never repudiated the primacy of private law. In the post-Lochner era, the Supreme Court has tolerated state use of the police power to oust private law relationships. Privately erected law, though, still controls in the absence of state legislation which can be rationally justified under the police power. The state must have some good reason to demand that its laws govern in place of those laws drafted by individuals.

The non-Economic substantive due process pseudo-doctrine shows a similar deference to private sovereignty over areas of individual control. In Griswold v. Connecticut, Justice Douglas defends his Mad-Lib Style of Constitutional Jurisprudence by referencing the sanctity of the marital bedroom as an institution which existed before the Bill of Rights. While not immediately clear what point he hopes to draw from this history lesson, the effect for Justice Douglas (and for all the Kool-Aid drinkers who followed him), was to withdraw from the realm of permissible governance a sphere of influence totally vested to private control. Roe v. Wade and Eisenstadt v. Baird follow the same logic. This is the right to privacy: to take certain things which are instrumentalities or domains of private individuals, where no public interest can be found, and turn their governance over to individuals while simultaneously denying power to the government.

The relationship between government and society is bounded. Government does not have totalitarian access in this country. The powers of our troops (during peace time) run out at the doors of private homes. The powers of state governments do not extend into the bodies of their citizens. And, as a default, the first right to govern over property (where no one else will be harmed) belongs to the property owner.

This message could have profound policy implications, and change traditional conceptions of what we think of as conservative dogma. For example, an Ownership ideal might look to pursue a larger population of business and home owners, at the expense of large housing and commercial conglomerates, as a means of granting private law making power to a greater number of individuals and over a greater assortment of properties and interests (and thereby chipping away at the powers of government).

Such a move would be dramatic enough in the long run. For now, it will be a fight enough to move a small amount of the economy from the control of the government to the control of private investors. The social security fight is the first battle in the effort to expel the government from the deep recesses of our society. The hope is to remove governmental control over some sums of money, and return sovereignty over this domain to the polity. This is the first (though perhaps greatest) fight ahead in a long battle to achieve sweeping private rule over the American economic and spatial landscapes.