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Property rights are the quintessential American right

Resurrecting an Essential Right



The US Supreme Court has agreed to hear the case of the Colorado baker who was forced, in violation of his Christian beliefs, to bake a wedding cake for a homosexual couple. The baker will argue that the state’s public accommodations law violates his freedom of religion and his right to “free expression.” The State of Colorado will argue that the baker’s refusal to accommodate the couple because of their homosexuality constitutes a violation of the couples’ rights. If someone went about hitting people over the head for religious reasons, he would certainly be violating their rights. But anything less than the use of physical force infringes no one’s rights. A baker’s refusal to make a wedding cake for a couple, whatever his reason, is no more a violation of their rights than if he refused to attend their wedding.
A statute like Colorado’s that requires a person to act contrary to his religious beliefs does indeed violate his religious freedom. But freedom of religion is not the proper grounds for the Supreme Court to disallow the statute in question, because it is too narrow. An atheist might also find the idea of homosexual marriage morally offensive, but the First Amendment’s religious freedom clause would not be available to him. Nor does it make sense to try to construe this case as a violation of the baker’s “freedom of expression,” when there is a much more natural and logical argument to be made that it is his property rights that have been violated. The baker owns the bakery where he bakes his cakes. How he uses his property—and whom he serves there—should be his business and no one else’s. The problem with this argument, of course, and the reason the baker and his lawyers are not employing it, is that it would upset a half century of civil rights legislation and jurisprudence. Barry Goldwater voted against the Civil Rights Act of 1964 because its Title II, which prohibited business owners from discriminating against customers on the basis of “race, color, religion, or national origin,” and its Title VII, which prohibited discrimination by employers on the basis of “race, color, sex, religion, or national origin,” constituted violations of the property rights of business owners and employers. Goldwater was right, but he paid a price for it. The baseball player, Jackie Robinson, called him “a hopeless captive of the lunatic, calculating right-wing extremists.” Goldwater lost to Lyndon Johnson in a landslide that November. It is not hard to see the roots of today’s political correctness in the Goldwater episode. No politician today would dare question the rightness of the Civil Rights Act of 1964. But our failure to defend the institution of private property will be our undoing.

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Property rights are the quintessential American right

Property rights are the quintessential American right. More than freedom of speech or freedom of religion, property rights are what made America the country of individualism. All human endeavor requires land. All land is either publicly owned or privately owned. On public land, what an individual may or may not do must be decided collectively—by society or by the government. Only when land is privately owned may the individual decide for himself how to use it. Private land ownership is the foundation of individual rights. Freedom of religion and freedom of speech are individual rights. The first says the individual’s right to think as he chooses takes precedence over whatever “the people” may want. The second does the same for his right to communicate his thoughts. But both depend on the existence of property rights. Try to imagine freedom of religion in a country where all the land and buildings were publicly owned—this as America goes about banning religion from public places; or imagine freedom of speech in a country in which the government owned all the means of communication. Property rights secure the individual’s freedom to act according to the dictates of his own mind. Yet today we find ourselves in the curious position of defending the individual’s rights to think for himself and to communicate his thoughts freely, but of denying his right to act as wants. Instead, we subordinate the individual’s right to use his property as he chooses to the needs of society. We are losing touch with our individualist roots. We risk losing a great deal more in the bargain. America’s foundational principles of the rule of law and equality before the law are premised on the primacy of the individual. Both embody the idea that one’s family background, one’s race, one’s religion, or any other such affiliations are irrelevant where the law is concerned; one stands before the law not as a member of a group, but as an individual.

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The right of private property includes the ownership one’s own labor, and the right to sell one’s labor to other

The autonomy of the individual was inherent in America’s original, capitalist economy. Privately owned land provides a place where the individual is free, above all else, to act to sustain his own life. This is the most important sphere of human action, yet it is precisely this sphere, the economic one, that we have conceded to the regulatory control of our local, state, and federal governments. Nowadays, to put private property to productive use is to put it to “public” use (thus Colorado’s “public accommodations” statute, of which the Christian baker ran afoul). The right of private property includes the ownership one’s own labor, and the right to sell one’s labor to others. So even persons who do not own land have a life-and-death interest in preserving the institution of private property. Freedom of religion and speech were afterthoughts when the Constitution was drafted in 1787. They were added only later, when a bill of rights became necessary to secure ratification. But the securing of property rights was a primary purpose of the men who drafted the original Constitution. Said Gouverneur Morris, who was responsible for much of the final language of the Constitution, “Men don’t unite [to form governments] for life or liberty, they possess both in the savage state in the highest perfection they unite for the protection of property.” [sic] The Constitution successfully protected property rights for about a century. But in the late 1800s, the Progressive movement began a long-term assault on those protections. They preferred governance by experts to individual liberty. They believed, for example, that America’s forests would be destroyed if left in private hands; that is how the National Forests came into being, managed by professional foresters. Progressives wanted government to regulate wages, hours of employment, and a hundred other elements of individuals’ economic lives that earlier generations had considered to be private matters. The decisive moment in the Progressives’ war on private property came with Franklin Roosevelt’s threat to “pack” the Supreme Court with additional justices in order to induce the Court to stop blocking New Deal legislation. The Court relented and, for all practical purposes, ceased to review legislation detrimental to property rights for two generations. Among the consequences of the Progressives’ victory were the explosive growth of the welfare state in the 1960s and the contemporaneous appearance of the hyper-regulatory state. Nowadays, when the Court reviews a property rights case, it is more likely to find in favor of the government than of private owners, as the Kelo and Murr decisions evince.


If you doubt that all rights depend on property rights, consider the rights one surrenders upon entering a public (or pseudo-public) place

If you doubt that all rights depend on property rights, consider the rights one surrenders upon entering a public (or pseudo-public) place.
  • You may smoke in your own home, but in most states you may not smoke in restaurants or other “public” places.
  • You may say whatever you want in your own home, but in the “public” workplace what you may say is restricted in the interest of preventing “harassment.”
  • You may not be forced to install handicapped access facilities in your own home, but you may be forced to do so in your “public” place of business.
  • The government may not regulate what is said in privately-owned newspapers, but it may regulate what is said over the “public” airwaves.
The City of San Francisco has shown how the metastasizing power to regulate privately-owned businesses poses a threat to such freedoms as the right to bear arms. The last gun store in the city went out of business recently in anticipation of proposed new regulations, such as one that would have required the store owners to video record all transactions and submit weekly reports to the police.

The NSA’s spying on Americans, although widely criticized as a violation of their rights of privacy, was actually a violation of the property rights

The NSA’s spying on Americans, although widely criticized as a violation of their rights of privacy, was actually a violation of the property rights of the cell phone carriers who owned the phone records that the government was, in effect, confiscating. But nothing illustrates so clearly the precarious state of our freedom as does the government’s takeover of one seventh of the private economy under the aegis of Obamacare. Such an annihilation of the individual’s rights to look after his own health, to contract with any doctor he chooses, or to forego the purchase of health insurance altogether, would be unthinkable in a country with a proper respect for property rights. (President Obama’s closing down of the coal industry by executive fiat ranks a close second. And Attorney General Jeff Sessions’s recent decision to expand the use of civil asset forfeiture, which often involves confiscation of the property of persons convicted of no crime, reminds us that the Democrats have no monopoly on the dismantling of our property rights regime.) Since the the 1960s, Americans have fought a losing battle to protect their liberties from a burgeoning welfare state and an ever more intrusive regulatory state. One reason we have been losing is that we have chosen to forego an indispensable weapon in this battle, property rights. We cannot save this republic without restoring the right of private property to its proper place in our Constitution.

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Tom McCaffrey -- Bio and Archives

Tom McCaffrey is the author of Radical by Nature: The Green Assault on Liberty, Property, and Prosperity.


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