Originally published by the Civil Rights Congress – https://civilrightscongress.net/
Max Gordon, the late editor of Rights, and the Bill of Rights Journal, delivered these remarks to the NECLC National Council in 1976.
The National Emergency Civil Liberties Committee(NECLC), until 1968 known as the Emergency Civil Liberties Committee, was an organization formed in 1951 by to advocate for the civil liberties embodied in the Bill of Rights of the U.S. Constitution.
Can the right to a job be considered a civil liberty, subject to demand for enforcement by our governmental institutions, within our present constitutional framework? As an organization explicitly dedicated to the full exercise of our civil liberties and democratic rights, the National Emergency Civil Liberties Committee considers that particularly in this bicentennial year, when we are examining the roots of our national political system and traditions, it is incumbent upon it to explore this question.
My remarks here, directed at an examination of the issue in terms of the ideology and constitutional outlook of Jefferson and Madison — who were decisive in initially shaping our democratic institutions — are merely suggestive and preliminary. There is no effort at thoroughness or legal rigor. I offer them simply to initiate the process of examination and to give our constitutional lawyers something to nibble at.
The American tradition, like all social phenomena, has its sharply conflicting aspects. Various economic “factions” (in Madison’s term), or classes, have sought to shape or interpret it according to their material interests. But as the Jeffersonian philosophers had predicted, the concentration of wealth which has characterized our nation’s modem history had so dominated our ideology as to submerge thoroughly the radical elements which were substantial in the thinking of these philosophers. In a sense we are now trying to recapture, and give life to, these radical elements in our national tradition.
Let’s take as our starting point a known fact of history most frequently cited as basis for the welfare state tradition – Jefferson’s substitution, in the Declaration of Independence, of the right to “life, liberty and pursuit of happiness” for “life, liberty and property.” Many have viewed this as a rhetorical flourish, or a personal idiosyncrasy of Jefferson’s. The great historian of American thought, Vernon Parrington, wrote in the mid-1920’s that Jefferson gave the classical Lockean definition of human rights a “revolutionary” shift by the substitution, and that he did so because of his deep conviction that the nation’s political machinery should guarantee the enjoyment of human’s rights for all and not simply for the holders property.
Parrington was right about Jefferson’s motivation, but wrong in characterizing the substitution as a “revolutionary shift.” Subsequent historic investigation, particularly in the mid-1930’s, indicated that the concept of the purpose of government being the happiness of its citizens was part of the Lockean “natural rights philosophy and widely accepted among Colonial thinkers. In fact, they went back to Aristotle, who said: “Governments are first founded that we might live, but continued that we might live happily.” Locke, Adam Smith, Blackstone, and others associated with the Enlightenment and National Rights theory viewed the pursuit of happiness as basic to their theories of government. Smith, in a 1759 work widely read in the Colonies, wrote that: “All constitutions of government are valued only in proportion that they tend to promote the happiness of those who live under them. This is their sole use and end.”
Several leading colonial spokesmen enunciated this thesis at various times. George Mason included it in the Virginia Bill of Rights, adopted in a month before the Declaration of Independence. Government, the Virginia document said, should be instituted for the common benefit, protection and security of the people, and that government is best which is capable of producing the greatest degree of happiness and safety.
(Several of these “champions of liberty” were slave owners. Jefferson and Madison made some attempts to eliminate or limit slavery, but gave the effort up as hopeless. All expressions concerning the aims of government and the rights of man applied, for them, only to free white men; the history of civil liberties has involved expanding the liberty they preached to all people).
Jefferson himself often enunciated the principle. Historian Charles M. Wiltse has put Jefferson’s position well in The Jeffersonian Tradition in American Democracy:
“The happiness principle is undoubtedly the most significant feature of Jefferson’s theory of rights, for it raises government above the mere negative function of securing the individual against the encroachments of others. By recognizing a right to the pursuit of happiness, the state is committed to aid its citizens in the constructive task of obtaining their desires, whatever they may be. It should also be noted that this principle is universal…The state is to secure, not merely the greatest happiness of the greatest number, but as far as possible the greatest happiness of all its citizens whatever their condition…“
Wiltse’s analysis is obviously highly germane to our discussion. Tom Paine, who developed the radical aspects of the natural rights tradition perhaps most consistently, also wrote in his Rights of Man that whatever the form or constitution of government, “it ought to have no other object than the general happiness.” If, instead, it operates to “increase wretchedness in any parts of the society, it is on a wrong system and reformation is necessary.” Paine went on to say that in the nations of Europe (as contrasted with the United States), much of mankind lives in poverty. He then developed his elaborate scheme for government action to eliminate all poverty, that of the aged, the blind, the lame, etc. including provision for permanent employment for all the “casual poor” of the major cities. This, he said, would be achieved not through charity but as a right, the result not of bounty but of justice. The scheme would be financed by progressive taxation and by partial disarmament following an international agreement to eliminate war.
Thus Jefferson’s substitution of the right to happiness in place of the right to property as the basic purpose of government represented a profound tendency in the underlying, philosophy of those who shaped our government. A major justification for advocacy of rebellion against the Crown was precisely the arguments that the British government was not concerned with promoting the happiness of the Colonists, but was seeking to prevent it by its economic measures.
In fact, as Jefferson made plain, the right of property was not in his outlook a “natural right” one which flowed from the natural right to pursue happiness. Since at that time the primary way to make a living was cultivating one’s own land, possession of property was important for livelihood. As governor of Virginia, Jefferson proposed unsuccessfully to give every landless freeman 50 acres of uncultivated land owned by the state. In a statement directly related to the current issue, he later declared:
“Whenever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as common stock for man to labor and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed.” (emphasis added).
This, as far as the American ideological tradition is concerned, its principal founder and early spokesman clearly provided a framework for the thesis that in our present industrial civilization, where land is not available, the government has the obligation to provide jobs for all.
What about the law, or constitution? Protection of the rights of property has generally been considered a fundamental aspect of its operation, with the Fifth Amendment proviso barring deprivation of “life, liberty or property without due process of law” as the instrument. But how did the Jeffersonians view the matter? In the Lockean concept the starting point of private property rights was man’s labor. “Every man has property in his person,” Locke declared. “When he mixes his labor with land, “this property becomes the unquestionable property of the laborer…” to dispose of as he will. Like property, Locke explained, a man can sell his “labor” for wages. The produce then becomes the property of the buyer. The wage laborer Locke held, had no other property but his labor (or, more accurately, his power to labor)
Madison’s theory of property was largely the same as Locke’s. In the constitutional convention debates, he explicitly declared that property, as he defined it, meant not only material possessions but life, liberty and a man’s faculties-or ability to work-and that the end of government was to protect property in this broad sense. He agreed that it was the government’s business to provide a milieu of confidence, justice and security in which every citizen can garner the rewards of his industry, economy and abilities. In an essay entitled “Property and Liberty,” he declared that man has a property “in the safety and liberty of his person,” and “an equal property in the free use of his faculties…” Government is instituted, he declared, “to protect property of every sort… This being the end of government, that alone is a just government which impartially secures to every man whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions and monopolies deny to part of its citizens that free use of their faculties…which not only constitute their property in the general sense of the word, but are the means of acquiring property strictly so call…” (emphasis in original). A government which prides itself on maintaining the inviolability of property, but which does violate property “in the labor that acquires the laborer’s daily subsistence…is not a pattern for the United States.”
Thus, the man who was the constitution’s chief draftsman, has told us that the protection of property as he construed it meant the protection by government of man’s right to labor. In legal terms, this would appear to provide some “legislative history” with respect to the constitution. If it appears remote in terms of our experience with the law as practiced, it is doubtless because of the enormous ideological dominance of those with concentrations of material property.
For the unemployed, their “property in labor” is permanently destroyed each working day that they do not work. They cannot reclaim it. There are only a finite number of workdays in a worker’s life and those he loses through being unemployed can be said to be taken from him “without due process of law.”
One final aspect of the Jeffersonian tradition. In a letter to Adams, Jefferson described his philosophy in terms common to him. Unlike crowded and aristocratic Europe, every American can have land to labor for himself or, if he prefers, another vocation which will yield a comfortable subsistence and will provide for “a cessation from labor in old age.” Hence, all Americans are interested in supporting “law and order,” and can safely exercise “wholesome control over their public affairs…” Jefferson was pointing here to a direct association between the democratic system he had helped to shape and economic security for the whole people. Late in life Madison, who began to see the development of the factory system, put the same thing in negative terms. In the clash of interests between those with and those without property, he had earlier declared in The Federalist Papers, “justice ought to hold the balance between them.” The guarantee of freedom, he had declared then, rested upon the ability of government to dispense this justice. Now he warned, the rich can oppress the poor in various ways and property can “oppress liberty.”
Involved, then, in the issue of job rights, is the maintenance of our democratic liberties, not only in the sense that minorities and blacks suffer gross discrimination when there is joblessness, but in the sense that the oppression which derives from unemployment subverts democratic justice, as Jefferson and Madison saw it.
Lawsuit for Jobs
Thus, there may well be a legal basis associating constitutional property rights with the concept of a job as a civil liberty. An attempt to use the legal machinery to win job rights was made some five years ago, not on the basis of this constitutional proviso but under the terms of the 1946 Employment Act. District 65 of the Distributive Workers Union filed a suit to compel then President Nixon to honor his responsibilities under the law. Nixon had projected 4.5 percent unemployment rate in his economic message to Congress — mandated by the 1946 law — and the Judge ruled that this was within the permissible limits of the law. Since the jobless rate was then 4.5 percent, he dismissed the suit. Thus, a significantly higher jobless rate would presumably, provide a basis for judicial action. The 1946 Act is too weak a reed upon which to lean: the Hawkins-Humphrey Bill is an effort to improve upon it as an effective instrument for compelling action to wipe out unemployment. But, as I have tried to indicate, there may be a constitutional basis for demanding job guarantees for all — revolutionary as this concept is.
Of course there are grounds for skepticism that full employment is possible under capitalism, which requires a “reserve army of the unemployed.” Irrespective of this, law – the definition of a civil right – can become a powerful instrument for battling against the scourge of joblessness.
As far as the NECLC’s stake is concerned, the issue involved is whether or not the right to a job can be considered a civil liberty. From the point of view of society, the corollary to this is the labor required by society today to help resolve so many of our massive social problems. Government responsibility should be not only to provide jobs per se, but to provide meaningful, socially necessary jobs, at decent income and under decent conditions, which will help to secure “happier” lives for everybody.
