Bernie Siegan's idea of freedom

Paul Jacob

4/23/2006 12:05:00 AM - 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.

Ted Kennedy, on the other hand, hacks out freedom itself on principle, the tired old principle of government supremacy. Sure, Siegan was "out of the mainstream," as Kennedy charged. But Siegan was creating (or re-creating) the new mainstream! Kennedy, of course, was and remains wrong in plowing private property rights under.

Which is something of a puzzle. Where would the Kennedy family be without principled support for wealth?

Sometimes it seems that the rich, like the Kennedys, support never-ending government meddling because they can afford to. The Kennedys always coveted power. And, because rich, they had and have access to power.

For the rest of us, less connected to power, it's nice to have a Constitution to protect what property we have.

Which is what Bernie Siegan understood, and helped thousands understand better.

Siegan did this by carrying on. He didn't let the failed nomination get him down. He kept on teaching and writing.

Before his 1980 masterpiece, in the early '70s he'd written a book just as eye-opening and provocative, Land Use Without Zoning. He revisited these ideas in a more comprehensive 1997 offering, Property and Freedom: The Constitution, the Courts, and Land-Use Regulation, one of several books he wrote after his failed circuit-court nomination — and perhaps one reason why not to be too sad that he never got to work as a judge. For some, work as a scholar does more good.

How much good did he do? Well, last year when the Supreme Court decided the Kelo case 5–4 in favor of a rather outrageous government taking, there was a national uproar. And not just on "the right," as Kennedy would have it. All sorts of people were aghast at the enormity of it. Well, Bernie Siegan's message had gotten through. Maybe not directly, but through a kind of cultural osmosis, more and more Americans are realizing:

Americans left, right and center have begun to agree on these principles, which together really amount to that old-fashioned notion of the American Dream.

The next step would be to extend this revolution further into the area of land-use zoning and environmental regulation, areas where Siegan demonstrated impressive expertise. Private property and the rule of law are the cure for many property problems, not the problem itself.

And, as we push these ideas further, for all our benefit, maybe we can remember that Bernie Siegan was one of the pioneers. Not of the property itself (that's the owners's job), but of the right to it. And the rightness of private property in general.