We have seen, especially over the last 40 years, a determined assault on private property rights. It is not coincidental that the passing of the Endangered Species Act marks the beginning of this period. Preservationist groups have accomplished through government coercion what they could not get people to do voluntarily. Increasingly, the cost of perceived societal goals are not borne by society as a whole, but by individual property owners. This situation is nothing more than legal plunder, or as Frederic Bastiat put it, “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”
The U.S. Constitution states that “..nor shall private property be taken for public use without just compensation.” The problem of late, is that the definition of “taking” has been subject to debate in the courts. If government condemns private land for a public project, the issue is straight forward and the owner is usually compensated. But it has been less clear in the courts for the situations where a property owner has been denied beneficial use of all or part of a property through zoning ordinances, “growing smarter” schemes, conservation easements, habitat plans, ecosystem management districts, or for the alleged protection of endangered species, wetlands, historic districts, heritage areas, conservation areas, wilderness areas, wildlife preserves, buffer zones to the foregoing, or for the many other excuses government uses to restrict land use.
So what is the big deal about property rights anyway? Karl Marx: “The theory of Communists may be summed up in the single sentence: Abolition of private property.” The big deal is that private property rights are essential to a free society. These rights confer upon the owner the fruits of his labor, the right to the benefit from his work, his investments, and his ideas. Notice that places without private property rights are generally totalitarian regimes where the citizens are slaves to the government.
The concept of private property rights has a long history in western thought. Our founding fathers, particularly Madison and Jefferson, equated property rights with individual rights. In the Declaration of Independence, Jefferson wrote of the inalienable right to life, liberty and the pursuit of happiness. The later part of this trinity refers to property rights and seems to have been taken from philosopher John Locke’s “life, liberty and estate.” Jefferson goes on to write, “a right to property is founded in our natural wants, in the means by which we are endowed to satisfy those wants, and the right to what we acquire by those means without violating the equal rights of other sensible beings.”
Other western philosophers and statesmen reinforce these principles. For Jeremy Bentham, there were four inalienable rights: liberty, property, security (in the sense of the 4th Amendment) and the right of self-defense. Georg Hegel: “Right is in the first place the immediate embodiment which freedom gives itself in an immediate way, i.e., possession, which is property ownership.” Pope Pius XII: “Private property is a natural fruit of labor, a product of intense activity of man, acquired through his energetic determination to ensure and develop with his own strength his own existence and that of his family, and to create for himself and his own an existence of just freedom.” Friedrich von Hayek: “The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.” U.S. Supreme Court (Lynch vs Household Finance, 1972): “The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a ‘personal’ right…a fundamental interdependence exists between personal right to liberty and the personal right to property. Neither could have meaning without the other.”
Individual and property rights have long been under assault by governments. A warning by George Washington applies as well today as it did when he wrote, “The time is now near at hand which must probably determine whether Americans are to be freemen or slaves; whether they are to have any property they can call their own…”
The current great assault on our rights derives from environmental laws and their unconstitutional application. We have entered a state of Environmental Feudalism. As Karol Ceplo writes in Land Rights: “The ever-increasing use of regulation to restrict private property rights represents a profound change in the politics of land use. This movement has been described as a ‘new feudalism of regulation.’ The management of environmental resources has shifted from the private owner to a centralized bureaucracy, much as land use in medieval times was controlled by centralized royal or ecclesiastical powers, rather than by the people who lived on and worked the land.”
Local manifestations of environmental feudalism came in the form of draconian rules concerning the pygmy owl, in county interim regulations requiring set aside of 80% of land as mitigation to build on the remaining 20%, and in the scheme called the Sonoran Desert Conservation Plan.
These changes did not happen over night, but evolved incrementally, just as James Madison warned, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” The road back may also be in small steps. The U.S. Supreme Court seems to have rediscovered the Constitution in many recent decisions, but so far, these decisions deal only with individual circumstances and form no overarching return to Constitutional government.
With the coming change in federal administration, we must insist that environmental laws be tempered with just notice to our rights, and that our representatives and senators return to the principles upon which this nation was founded.