Thomas Hobbes in his 1651 “Leviathan” described life in a state of nature as “nasty, brutish and short.” Fortunately, shortly after Leviathan was published, the Tory architects of the English Restoration Settlement brought several protections into the British and later American Constitutions that revolutionized our fates: they were property rights, Habeas Corpus and the First Amendment protections for free speech. Alas, in the 21st Century those protections of ordinary people are being removed, allowing government to oppress them in a way impossible in the preceding 350 years. This time however, our fate will be worse, for modern medical advances will make our lives not only nasty and brutish, but achingly, unbearably long.
Our 17th century ancestors would have thought that the Industrial Revolution and the immeasurable abundance that it brought would cement those three freedoms irremovably in human society. All three rights had contributed substantially to industrialization. Property rights, finally established in land, the most important form of property, by the Tenures Abolition Act, 1660, had enabled ordinary people to accumulate wealth without concern about depredations from powerful and well-connected neighbors; without this ability, the establishment of industrial enterprises would have been impossible.
Habeas Corpus, formalized in England by the eponymous Act of 1679, had made it impossible for the authorities to imprison dissidents indefinitely and, more important for industrialization, had made it impossible for politically well-connected incumbents to secure the imprisonment of their competitors.
Finally, freedom of speech, established by the non-renewal of the Licensing Act in 1695, enabled governments and the well-connected to be criticized and the politically or economically unpopular to sell their views and products to the general public.
The U.S. Constitution embedded these freedoms, so you would have thought that, given the three freedoms’ success in generating the Industrial Revolution, the greatest advance ever in human living standards, they would have been safe for at least a couple of centuries. That however was reckoning without the perversity of modern academia, exempt from ordinary, healthy financial constraints on their activities, and determined to instill ever more pernicious ideologies into the brains of impressionable and not very intelligent young people.
The first freedom to be undermined and the most fundamentally demolished of the three was that of property rights. These had been regarded as a central principle of economics in the eighteenth century, far more so than free markets, which were thought of as a peripheral concern of interest only to merchants, traders and others of the commercial class. Indeed, this attitude was inherently rational; what use was it to have the ability to buy and sell throughout the world, if the profits you attained thereby could be stolen from you by any Mediaeval baron or middle-level bureaucrat?
It was thus a tragedy for the future United States when Thomas Jefferson, a woolly-headed academic 200 years before his time, distorted John Locke’s simple ideal of “life, liberty and property” to substitute airy French nonsense about the pursuit of happiness – the French dilettante thinkers who came up with that one were to discover how useful a protection it was under the guillotine only a decade later! As a result, property rights were not explicitly affirmed in the U.S. Constitution, making them appallingly vulnerable compared for example with gun ownership rights, which were so affirmed by the Second Amendment. (The Fourth Amendment includes a protection against unjust seizure, but even that Amendment has been excessively filled with holes by successive episodes of tyrannical government.)
Property is almost as unpopular among certain segments of society as is gun ownership, but it can be undermined every day by “woke” regulators and legal scamsters, because it is not given the benefit of explicit Constitutional protection. Of course, under the notorious Earl Warren Supreme Court (1953-69), even explicit Constitutional protection would not have saved it, but Earl Warren did not last forever, and over the next half century the Court’s legal protections against academic- and lawyer-generated harassment were gradually strengthened, most notably by President Trump’s three gallant Supreme Court appointments in 2017-20.
In practice, the first violations of property rights came during wars: the Civil War and World War I. Confederate property was seized during the Civil War and used for the benefit of the Union, while all kinds of controls on economic activity were imposed by the regulation-mad Woodrow Wilson administration. While the Takings Clause of the Fifth Amendment theoretically prohibits the Federal government from seizing private property, in practice the courts have been utterly wimpy in invoking this clause, for example in the notorious Kelo v. New London case of 2005, where Suzette Kelo’s property was seized, not for any public purpose but simply because a politically well-connected corporation wished to build there.
The incessant, never-ceasing violations of property rights intensified with the New Deal and have remained prevalent ever since. The National Recovery Administration regulations, passed during peacetime, drove a truck through the property rights of small businessmen, as was correctly pointed out by the Hughes Supreme Court in the last years remaining before the Court’s generational slumber. World War II inevitably worsened regulation, and many wartime regulations remained in effect for decades after the war.
Then in the last 1960s and early 1970s a further massive assault on property rights was mounted through the environmentalist and disability rights movements. These depredations have only grown more injurious with the invention of “climate change” as an excuse for any disgraceful violation of individual rights, property or otherwise. The World Economic Forum has announced the motto of its “Great Reset” as “You will own nothing, and you will be happy.” In reality, that is the recipe for perpetual and absolutist tyranny. Property rights, the basis of all other rights, are today being violated ad infinitum.
The recent violations of Habeas Corpus are more insidious, because as yet less obvious. Having been aware of the fundamental principle of Habeas Corpus, which provided for any prisoner to demand a judicial hearing, to be freed unless convicted of an offense, I was surprised when several hundred prisoners of the January 6 disturbance were held for over two years without being charged with any offense. It is now clear that a multi-tier justice system operates in the United States, and that the old common-law protections of the liberty of the individual are nullified if you are deemed to be from a disfavored class. No society in which this is the governing judicial principle can reasonably be described as free.
As for freedom of speech, that has been nullified by universal surveillance technology, which has enabled the state to take cognizance of even the most casual remarks, and criminalize them at its will. Again, this became clear in the reaction to the January 6 protests. My late wife Anna engaged in similar protests against the last Bulgarian communist government in January 1997, similarly occupying the Parliament building in Sofia. Fortunately, in 1997 surveillance technology was not yet universal, and thus, instead of rotting for decades in a Bulgarian jail, Anna had the inexpressible joy of seeing the communists overthrown and replaced through free elections with a better if corrupt center-right coalition. Freedom of speech is unnecessary for those who never say anything against the conventional wisdom; freedom to demonstrate is unnecessary for cowards and the cautious, but for those bold spirits who defy conventional norms – and they are the same people from whom great inventions flow – both freedoms are essential and to be preserved at all costs.
With our freedoms eroded, we are returning to a Hobbesian state of nature. For Hobbes, that state was redeemed somewhat by the poor life expectancy of the times; if life was utterly miserable you could expect not to endure it for long – and then to go to a place of eternal bliss, for those (the majority) who were devoutly religious. Today, medical advances have meant that our life of nasty brutishness will be hugely prolonged, unless ended arbitrarily by the state or the proliferating criminal elements. We will thus suffer the torments of nastiness and brutishness for decades, or even centuries, our sufferings far more prolonged than those of our ancestors. Worse still, we have become almost entirely secular, so there is no Heaven to look forward to.
(The Bear’s Lair is a weekly column that is intended to appear each Monday, an appropriately gloomy day of the week. Its rationale is that the proportion of “sell” recommendations put out by Wall Street houses remains far below that of “buy” recommendations. Accordingly, investors have an excess of positive information and very little negative information. The column thus takes the ursine view of life and the market, in the hope that it may be usefully different from what investors see elsewhere.)