Inheritance Law

This tendency in favour of aristocracy is also reflected in inheritance law, and demonstrates the first cause – conservative resistance - of why progress in realising the long term democratic aspirations of the founders has been so slow and stultified. As stated, American enlightenment theorists embraced the advances of their British mentors to help overcome the main impediments of democratic development. This included endorsement of Blackstone’s common sense, Lockean recognition that inheritance rights should be regarded in English law as civil, not natural. Jefferson incorporated this understanding in his self evident truth that ‘the earth belongs to the living.’ As stated, this principle has not been directly incorporated in US constitutional practice, as was the original intent of the radical founders, due to the compromises made more necessary by defeat of the French revolution. Jefferson’s self evident truth has nevertheless endured and prompted the use of inheritance tax at both state and federal levels. It has been recognized in American law for over two centuries that inheritance rights are civil, not natural.

The first Supreme Court alleged violation of this principle was under the Reagan administration in 1987 by its rejection of the claim made by government authorities that the right of inheritance in regard to small tracts of largely unclaimed American Indian land was a matter of civil, not natural rights. They had argued such inheritances could be decided by civil authorities so as to revert ownership to Tribe authorities in order better to preserve the integrity of the American Indian territories. There are however two main reasons why the principle that inheritance involves civil, not natural rights has not in reality been challenged by this decision. Firstly because such claims misrepresent a principle grounded in natural law which in accordance with the original intent of American revolutionary radicalism was to apply to large, but not necessarily small amounts of wealth. Secondly because its application to American Indian law is itself in any case anomalous and problematic given the betrayal of the founders intent that acquisition of Indian territory would be only on the basis of consent or violation of peace treaties by the Indian side.

It seems quite likely this encroachment upon the founding principles of American republican law will not be subject to determined criticism by radicalism. As stated, such failings can be attributed at best to incompetence. At worst the picture is more complicated. Although right wing conservatism has frequently claimed that such principles are Marxist in nature the truth is that the one individual who holds overwhelming responsibility for the failure of radicalism to consistently pursue and support realization of the principle that the earth belongs to the living certainly in regard to inheritance tax was Karl Marx himself.

Marx argued persistently throughout his political career against recognition of inheritance tax as a primary policy instrument and objective of the left. Its inclusion in the communist manifesto may be explained more by the influence of Weitling, the original theorist of the communist league subsequently ousted by Marx and Engels, than to any ‘dialectical’ insight. While Weitling had emplaced inheritance tax as a key policy objective in his written work, once Marx had acquired control of the league he proceeded to demean the former leader’s approach and relegate inheritance tax to a position below that of social ownership and trade union issues. Marx continued to denigrate the primacy of inheritance tax in left politics as ‘Saint Simonist nonsense’ both in the First International and in the German workers movement. His main arguments against prioritizing inheritance tax were first, that to do so would risk provoking a violently repressive backlash from the reactionary classes, and second, that redistribution of wealth could only be properly achieved in a socialist system. Whether wealth can only be distributed equitably under a socialist system remains to be seen, though it can be stated that China’s 50% inheritance tax recently enacted under its totalitarian capitalist regime was matched long ago at various times in the western capitalist democracies. The Marxist idea that the aim of establishing a dictatorship of the proletariat would be somehow less provocative than promotion of the principles of English law and the democratic aspirations of the American revolution has similarly since been shown to be less than convincing.

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