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Who’s really serious about protecting property rights?

Essay by Ed Quillen

Private property – July 1999 – Colorado Central Magazine

As various municipal and county governments in Central Colorado grapple with planning and zoning, we hear a lot about “property rights,” often in the context of “the damn government is trying to take away my property rights.”

But what, exactly, do we mean by property rights? What is property, and what rights are involved?

For starters, we need to separate property rights from property values — they may often be related, but they’re not the same thing. An adverse zoning decision, for instance, could diminish a property’s value (say by allowing a smelter or tannery next door), but not affect the owner’s rights to build, sell, inhabit, mine, subdivide, or otherwise use his property as he sees fit.

Property rights are often portrayed as opposed to government, but they are a creation of government. Without government of some sort, there wouldn’t be much in the way of private property.

Assume that we lived in some savage “state of nature.” What could truly be your property under those circumstances? Whatever you could carry on your back that you could defend with your own fists — that’s all. You might claim a lot more, but without government (which might be you and your regal army), who would be there to protect that claim?

I can own a city lot with a house on it because of an elaborate system of government, starting with the U.S. Army which fought the Mexicans and Utes to produce treaties to put this lot under U.S. jurisdiction. Then came government surveys to put a grid over the landscape, and a county government to record deeds. And if someone infringes on my property, my protection is to call the sheriff (a government agent) or to go to court (another function of government).

So I think it’s clear that private property is a result of government — that is, if we didn’t have government of some sort, we wouldn’t have nearly as much private property.

This issue was discussed quite thoroughly in 1858 during the famous debates between Abraham Lincoln and Stephen A. Douglas during their Illinois campaign for the U.S. Senate.

At the time, slaves were property in some states, but not in others. Government was defining property 141 years ago. South Carolina had one definition of what constituted property, and Massachusetts had another.

The major contention between Douglas and Lincoln was about slavery in the western territories. In the Northwest Ordinance of 1787, adopted under the Articles of Confederation before the United States had its current constitution, Congress had forbidden slavery in the territories.

Thus, Lincoln argued that Congress had the right to forbid slavery — that is, regulate property rights — in the territories. After they became states, in Lincoln’s view, they could adopt their own property laws which might or might not include slavery.

Douglas pointed to the infamous Dred Scott decision, which in essence said that property is property. If a Virginia man had an ox and took it to Ohio, he’d retain title to the ox. Why should a slave be any different? If Congress forbade slavery in the territories, then it amounted to taking away the property rights of slaveowners who might migrate.

Lincoln countered that the logical extension of the Dred Scott decision would be a Supreme Court ruling that no state had the power to forbid slavery, and thus Illinois would become a slave state, even though its voters clearly felt otherwise.

That’s not a real problem, Douglas answered. Even if slavery were technically legal in a jurisdiction, it required a supporting framework of laws and their enforcement — everything from fraud protection at slave auctions to the authority to recapture runaways without running afoul of kidnapping laws. So people who didn’t want slavery in their state could keep slavery out by refusing to enact such laws.

DEFINING A SLAVE as “property” wasn’t enough — the government had to be involved at many levels for this “property right” to be worth anything. Property rights are created and enforced by government.

For another example, consider that in the capitalist and free-enterprise United States, you don’t own your body — that is, you can’t sell parts of it. (The money that changes hands in organ transplants goes to doctors, not donors). But in socialist India, you do have property rights in your body; you can sell one of your kidneys for $1,000 to someone who needs a transplant.

How much control are you allowed to have over your property? Can you say who can enter and who cannot?

Probably not, if it’s a public accommodation — because so many property owners abused this right that the only remedy was the civil rights laws.

By now, I hope it’s clear that what is and isn’t property and worthy of “property rights,” and the extent of those rights, are matters of social definition. Laws determine what is property and what you can do with your property. I can buy a horse or a sawhorse, but they’re different kinds of property — nobody cares if I beat on the sawhorse with a big hammer, but it’s not legal for me to treat a horse that way.

But this is digressing to some extent, since most of today’s political arguments over property rights concern “real property” — land and the buildings thereon.

Much of this focuses on the “takings clause” of the Fifth Amendment to the U.S. Constitution: “… nor shall private property be taken for public use, without just compensation.”

In many cases, this is quite clear. If the city decides to widen the street and needs a piece of my lot, then it has to pay, after we haggle or go to court to determine what constitutes “just compensation.” The city can’t just seize the property.

Suppose, though, that I own a ranch and I get tired of rising at 5 a.m. to feed cattle in the winter. If I subdivide the place and sell the lots, I’ll get enough to retire to Bermuda. Then the county passes a zoning law which effectively prevents me from subdividing. That doesn’t take money out of my pocket, but it keeps me from making money that I might otherwise have made — is that a “taking of private property for public use,” and if so, where do I get my compensation?

The property rights advocates will say this is a takings and worthy of compensation.

BUT THEIR ADVOCACY has curious limits. Society has made a decision that I cannot grow hemp on my property — a right that George Washington enjoyed — even though it might be a profitable crop. Given a little time, I could probably prove that I’m forgoing thousands of dollars every year on account of this governmental regulation. Where’s my compensation?

But presumably most Americans support our idiotic drug laws and believe that the consumption of hemp leads to dire consequences for society. And thus a representative government made a decision — hemp cultivation is bad for society. So I cannot use my private property in this manner.

But the case could certainly be made that we’re better off with big ranches, rather than 5-acre parcels, each with its own well and defective septic tank, on a road that has to be plowed, with a house that the sheriff and ambulance may have to respond to.

Therefore, can’t a jurisdiction decide that subdivision, like hemp cultivation, is a deleterious activity, and forbid it?

Why is one a violation of property rights when the other one isn’t?

IF SOCIETY CAN constitutionally forbid the first use of property, why can’t it forbid the second, on similar grounds — that subdivision is bad for society. In a philosophical sense, is there any meaningful difference between hemp cultivation and subdividing?

Obviously, though, you can’t make all subdivisions illegal, which presumably makes the subdivision situation different than that of marijuana. Yet during World War II it was legal to grow hemp — since it can provide rope, cloth and the like. And today in the U.S. some citizens are allowed to grow and/or dispense what are ordinarily contraband commodities for medical and experimental purposes. So clearly growing certain plants is a right that our country gives to some, but denies to others.

Or to put still another spin on property rights, one study a few years ago said that every new resident costs existing residents $7,000 in increased public services for roads, schools, parks, law enforcement, etc.

I have no idea how valid that study was, but it’s safe to assume that new residents on new subdivisions do cost something, and that something comes out of existing residents’ pockets.

So assume that the county commissioners approve a new subdivision that might hold 1,000 people. They have determined that this is in the public interest.

The 1,000 new people at $7,000 a head works out to $7 million that comes from current residents. Assume there are 10,000 people in the county, and that means each resident loses $700 on account of this subdivision.

Isn’t this a “takings”? Wasn’t your private property — consisting of the $700 that the new subdivision cost you — taken by the action of some public body? Where’s your just compensation?

Here’s another way you’re losing your property rights, without any protest from the property rights advocates. Our property rights derive from English common law, which held that you controlled your property from the center of the earth to the end of the sky.

But over the years, that right was diminished — you can’t shoot at trespassers if they happen to be in airplanes above a certain altitude. Society made a decision that air transport was more important than your traditional property rights. Where’s your compensation for this takings?

NOBODY SEEMS to be arguing this case, either. The property rights advocates have been pretty silent about draconian federal and state laws which allow property to be seized even when the owner had no knowledge of its illegal use. Nor do they seem too upset that police can now get a warrant to search your home, based on an anonymous tip, or that they don’t even need to get a warrant to search your yard.

I’m not some socialist who believes in the abolition of private property. Private property should be one of the bastions of individual liberty — a piece of earth that is yours, and that society can visit only by invitation. Any intrusion on this ought to be as limited as possible.

But over the years, we’ve adopted scores of limitations on the rights of property owners. As a society, we decide what is or isn’t private property (slaves and kidneys aren’t), and we decide what rights are associated with the property (great grand-dad could grow whatever crop he wanted, and get out the long-barreled shotgun when he saw a balloonist overhead). Our governments make decisions all the time which take our property, without providing compensation.

The property-rights advocates are going to have to come up with a better argument than “It’s my property and I can do whatever I want with it and it’s none of the government’s business.” They don’t really believe that, or they’d be promoting the re-legalization of hemp and poppy cultivation, advocating the repeal of animal-cruelty laws, arguing to bring slavery back, and agitating for a make-my-day law that applies to trespassing jetliners.

Property rights have changed over time as this republic makes decisions about what does or doesn’t benefit society. If the property rights advocates want to argue that we’re better off with five-acre subdivisions in every valley, I’m willing to listen to their case. But if they want to yell that they have an absolute right to subdivide, and it’s none of my business or yours, then they’d better be prepared to make the case for slavery, too.

— Ed Quillen