October 31, 2005

KUFM / KGPR

T. M. Power

 

Purposeful Confusion over “Property Rights”

 

            This last summer a closely divided US Supreme Court ruled that the city of New London, Connecticut, could use the right of eminent domain to condemn the property of homeowners and small businesses in a waterfront neighborhood to make way for more upscale businesses.  Although existing property owners were paid the market value of their property, they could not refuse to sell even though ultimately their property would simply be transferred to new private owners. All of this was justified by the local government and the courts in the name of economic development

            This has led to howls of protest led primarily by conservative “property rights” organizations who see such forced transfers of property from one owner to another as a violation of the sanctity of private property. They have solicited support from the center and left because the local government had lent its power to private well-heeled corporations to evict relatively poor households and small businesses. As disconcerting as these “urban renewal” projects often are, people seeking to protect older neighborhoods and affordable housing should be careful about aligning themselves with these anti-government “property rights” folks.

            These anti-government folks have a very broad agenda. They have, for instance, been working for decades to convince the public and the courts that environmental laws “take” people’s property because those laws are likely to reduce the profitable uses to which that property might be put. They insist that if the government constrains economic activity in any way, the government must compensate the affected people for their lost income and profits.

            That, of course, would make almost all legislation, environmental or otherwise, impossibly costly to governments.  From the anti-government point of view, that is the exactly the point.

            What is cynically interesting about this “property rights” position is that it is nothing of the sort.  In addition, an economic development motivation lay behind the emergence of the contemporary anti-government “property rights” crusade.

            The contemporary anti-government advocates insist on the absolute right of an individual or corporation to use its property as its sees fit, regardless of the consequences to others. This position shows no respect for others’ property rights. English Common Law had always respected the right of individuals to the “quiet enjoyment of their property,” meaning the right to enjoy their land and homes without interference by neighbors’ activities.  If a neighbor’s use of his property reduced the value of your property to you, you could bring a nuisance suite to stop that activity and/or be compensated for the damage done.  This is the property owner’s version of “your right to swing your fist ends where my nose begins.” 

            What is at issue here is who has the rights.  Does a property owner, because of the very fact of that ownership, have a right to use that property in any conceivable way that might be attractive or profitable, or do other property owners have the right to be free of the damages those uses impose?  This is a matter of property rights versus property rights.

            Until the agricultural and industrial revolutions increased the intensity and scale of economic activities to the point that they could not help but have damaging impacts on large numbers of surrounding residents, it was usually the persons who suffered from the change in property use whose rights were protected from the nuisances being imposed on them.

            It was large-scale agriculturalists and industrialists who argued that this assignment of rights was impossibly conservative. It allowed traditional uses of the land to veto profitable new uses or burdened the new uses with the impossible task of compensating those who were damaged.  That, they argued, would halt economic development, development that was in everyone’s long-run interest.

            That view ultimately came to be accepted by the courts. The right to the quiet enjoyment of your own property increasingly came to be dismissed by the courts as a quaint remnant of a bygone agrarian era. If we wanted industrial progress, we had to accept air, water, and land pollution, no matter what it did to the value of our property or the health of our families. The courts began to rule consistently on the side of the commercial use of property and against the residential enjoyment of property.

            From this commercial success in redefining property rights solely in favor of business activities, ultimately came modern environmental legislation that re-endowed citizens with the very rights they had a century or two ago. Montana’s constitutional right to a “clean and health environment” is just one example of that attempt to re-balance property rights.

            It is not surprising, therefore, to find corporate America heavily subsidizing the anti-government property rights movement. They seek to return to a 19th and early 20th century world where only commercial activities had property rights because it was only commercial businesses that made our well being possible. We citizens were necessarily of secondary importance, being mere workers and consumers.

            Going back to those grimy, choking, degraded days is in none of our interests. We should not follow these cynical pied pipers, greedily pursuing their corporate fortunes, as they seek again to take basic rights away from each and every citizen.