who attended 30 or more years ago) learned about the separationrnof powers and checks and balances —although few seem familiarrnwith the idea of dual sovereignty-rnFewer shll understand a third set of constitutionally dictatedrnsafeguards that have largely been discarded. One of these wasrnimplicit: Members of the House of Representatives were to bernselected by the exercise of the franchise within the states; in allrnof the states, this meant those owning sufficient property tornqualif)^ as an elector. Generally speaking, voters were freeholdersrnor the sons of freeholders; they had enough of a stake in therncommunih’ to vote in a manner that safeguarded their property.rnThe Kramers knew that propertyless voters might vote to takernpropcrt}- awav from those who had it; worse still, having nothingrnto lose, they might sell their votes to designing demagogues whornw ould promise to take someone else’s properiy and redistribute it.rnAn e’en more interesting conservative political decision ofrnthe Framers was tlie method of selecting senators and the president.rnThis was to be done indirecdy, because the Founders belierned that, by having the people select the electors rather thanrnthe actual candidates, the system would not produce candidatesrnseeking to curry popular favor, but men noted for talent andrn’irtue, capable of being trusted with high public responsibility.rnPresimiably, those officeholders would not be men bent onrnredistribution but devoted to the protection of property. Sincernthe president and the Senate bore the delicate task of selectingrnjudges and negotiating treaties, men with the interests of therncommonwealth in mind—not men who might curr’ favor withrnthe rabble—would be preferred for the Senate and presidency.rnSenators were to be selected by state legislatures (a paradoxicalrnmoe in light of the distrust of state legislatures that had led tornthe Constitution itself), and presidents were to be selected byrnthe Electoral College, an assembly oiunpledged electors pickedrnexprcssK’ for that purpose.rnUnfortunately, the so-called “Progressive Era” of the earlyrn20th eentur)’, and the constitutional amendments it leftrnin its wake, have virtually done away with this scheme. (Andrnvhat the Progressive Era did not ruin, the Warren and BurgerrnCourts seem to have set out to demolish.) As we have seen mostrnstrikinglv in the case of the Senate impeachment trial of PresidentrnClinton, the passage of the 17th Amendment, which pro-rnides for direct election of U.S. senators, has produced a body inrnwhich focus groups and polls are far more important than thernwelfiire of the nation. Each took an oath, before they tried therncase of President Clinton, to uphold the Constitution—which,rnas David Schippers’s book SellOut: The Inside Story of PresidentrnClinton’s Impeachment makes clear, should have led them tornconvict the President (or at least hold a trial with live witnesses).rnVirtually all of the senators ignored their obligation to hold anrnactual trial, and half of them ignored the evidence of obstructionrnof justice, tampering with witnesses, and perjury thatrnshould hae led them to remove President Clinton from office.rnBut tlie polls told them the American people would not havernapproed of his removal, and so demagoguer)’ triumphed in thernClinton impeachment battle, as it triumphs too often over thernkind of disinterested virtue once thought necessary to protectrnthe republic and its property owners.rnAnother “Progressive” amendment permitted a federal incomerntax, which further eroded property rights by, in effect, allowingrnredistribution. And the rise of political parties and electorsrnpledged to vote for the candidates of those parties turnedrnpresidential elections into shallow popularity contests, ratherrnthan solemn reflections of the nation’s propert}’-protection andrnleadership needs.rnBv abandoning our constitutional principles, our country- byrnnow should have gone to hell. While I do not go that far, I dornrecognize that it is only because of divine favor, abundant landrnand resources {property, that is), and unparalleled technical ingenuit)’rn(protected by intellectual property doctrines) that wernhave renraincd prosperous. Surely the old adage that Cod protectsrnchildren, fools, and the United States of America still ringsrntrue. But should we once again enter an era of economic turmoil,rnor should political leaders even more committed to redistributionrnflian the Clinton administration ever take office, thernprecariousness of property rights could become acute.rnLet us not forget that Locke’s Second Treatise — vh’c\ isrnechoed in oiu l^eclaration of Independence —did not talkrnabout securing inalienable rights to life, liberh, and “the pursuitrnof happiness” (whatever that means); it spoke of life, libert}’,rnand flic protection of properh’, as did state constitutions at therntime of the framing of the U.S. Constitution. Take Pennsylvania’s,rnrecognized as the most radical of the new state constitutions.rnIt stated that “all men are born equally free and independent,rnand have certain natural, inherent and unalienable rights,rnamongst which are the enjoying and defending life and libert)’,rnacquiring, possessing and protecting property, and pursuing andrnobtaining hapjjiness and safeh.”rnPerhaps part of our problem is simply that wc are used to bigrngovernment; it no longer frightens us the way it should. We occasionalK’rnremember that a government big enough to give usrnevcrlliing we want is also big enough to take it all way, but mostrnof us are seduced by flie possibilities. Too few protested whenrnthe Clinton administration, in effect, benefited from a presumptionrnthat the federal government can do anthing it wantsrnas long as it can concoct some far-fetched argument that a tenuousrnreading of administrative practice, statute, or a court casernpermits it. In other words, an)’thing “legal” is presumed to berngood, and anytime anybody can argue something is legal, itrnought to be justifiable. That is the road to confiscation and redistribution-rnflic road on which we are now travelling.rnThe Framers understood another dimension of decent lawmaking:rnThere can be no order without law, no law withoutrnmoralit), and no morality- without religion. Christian religion,rnat least, if it cautions against putting your faith in princes and lucre,rnalso understands that property’ ownership ought to be protectedrnas a means of creating a citizenry that can use its wealthrnto better the community. Jesus did urge His disciples to abandonrnworldly goods to preach His word, but the parables seem tornsuggest that Pie understood personal wealth could also be harboredrnand used by its owners to promote the interests of all.rnOne of the mysteries you encounter reading philosophersrnlike Locke, and documents such as the Pennsylvania Constitutionrnof 1776, is fliat fliey never seem to explain why we shouldrnprotect properly rights. Instead, they defer to an implicit notionrnthat Cod w ills that we have property, just as we are regarded, inrnLockean theory, as His property.rn1 he problems we encounter when we seek to protect propertyrndo not simply stem from poor education, a wayward federalrngovernment, misconceived constitutional amendments, andrncourts that have forgotten that they are not legislatiires. As arndead mackerel rots from the head down, today even the staternlegislatures and courts have forgotten about the ideals of the latern18th century. Our problems may rest just as much with staternand local governments as with the federal. crnAPRIL 2001/21rnrnrn