Paul Jacob

On March 27th, a pioneering thinker died at the age of 82. Somehow I missed the news when it was new. His obituary didn't appear on front pages, or on extended segments on the nightly news shows.

But it should have, for Bernard H. Siegan was a very important American. His works remain important, and will continue to influence the realm of politics and law for years.

Bernie Siegan is most famous for his book Economic Liberties and the Constitution, originally published in 1980. In it he showed that the freedoms we cherish depend on private property, and that the Constitution was designed, originally, to defend just that.

It was an almost shocking idea at the time. The era of big government was not only not close to over, word of its days being numbered was still hardly a whisper. The Reagan Revolution had just started. The Cato Institute was still in San Francisco. The Institute for Justice, which today carries out Siegan's vision, was eleven years from inception. In 1980, anti-property ideas still drowned out most others.

But Siegan himself was a quiet man; he wasn't so much political as scholarly. He showed how the idea of private property made sense, how sensible were our founders, and how senseless was the 20th century's flirtation with big and intrusive government. And he did so with genuine scholarship, rock-solid information, and flawless logic.

So it's completely understandable that when nominated to the 9th Circuit Court of Appeals in 1987, he was borked by Senator Ted Kennedy and others . . . borked in the same year that Robert Bork's similar borking gave meaning to the word "borked."

Now, between Bork and Siegan, I prefer Siegan. His defenses of freedom seem more principled than Bork's. He saw the original thought of the founders as principled, and that some of those principles become obvious only when taking the Ninth and Tenth Amendments seriously. He even suggested that government justify all legislation with reference to these principles. Bork, on the other hand, famously dismissed the Ninth and Tenth Amendments as "blotted out" as if with ink. Bork concluded that there are (and can be) no over-arching principles, and seems to take his originalist strategy as a carte blanche to hack down principles to the barest shoot.

Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.