The First Right

Property rights are the fundamental building blocks of Liberty.  The freedoms we enjoy in these United States may be our heritage through Natural Law and given to us by the Creator, but the free exercise of those fundamental rights is dependent upon a devout view of the sacred right to property. 

Recently, the U.S. Supreme Court issued a ruling which stated, in effect, that the government of the United States has no interest in protecting property rights, and that these rights are at the mercy of state and local jurisdictions.  While this may not be the end of private property, it certainly removes another brick from the foundation of liberty, and continues the long assault on private ownership which we have witnessed in this country.  We should all be concerned; if we allow our rights to property ownership to be taken from us we will lose all other rights in the process.  Tyranny is harvested from government control of land.

Our Founding Fathers believed in Natural Law.  They believed that God had written His Law in the fabric of the Universe, and that the laws of man should be based upon those higher precepts which evinced themselves.  The Founders looked to the great natural philosophers of their day for guidance on setting up a better system of governance, and they appealed to Natural Law:

``We hold these truths to be self—evident, that all Men are created equal, and that they are endowed by their Creator with certain unalienable rights, that among these Life, Liberty, and the Pursuit of Happiness.``

These words did not come out of a vacuum.  More precisely, they came from  the English philosopher John Locke, who, arguing from Natural Law, claimed all men had a right to Life, Liberty, Health, and Property.  Jefferson and company changed the wording slightly (on the urging of Ben Franklin) because they believed that property rights would be self—evident (given the source quote) and because they did not want to exclude non—property owners from the rights enjoyed by all.  Still, it is clear that they intended property ownership to be a sacred institution, and considered it important enough that it was addressed in the U.S. Constitution under the Bill of Rights (which many of the Founders did not want to include, since they thought these rights should be self—evident.)

Locke believed that government existed by virtue of a compact between peoples, and he saw protection of property rights as the primary purpose of government.  He states in his Second Treatise on Government:

Sect. 3. Political power, "then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common—wealth from foreign injury; and all this only for the public good."

Furthermore, Locke stated:

"Government has no other end than the preservation of property."

Locke`s position on property rights was hardly original; the concept can be traced back into the mists of time.  Certainly the Romans had an extensive Real Property law, dating back to their original legal document, the12 Tables, in 450 BC.  The Byzantine Emperor Justinian, in his summary of all Roman laws, codified property rights in the Corpus Juris. The Bible deals with the matter in the highest legal writ; 2 of the 10 Commandments address property (thou shalt not steal, thou shalt not covet thy neighbors house, or goods) and the Jewish legal books (Leviticus, Numbers, Deuteronomy) make it clear that man has a right to property ownership. 

The Founders understood property as a sacred trust. Consider these words:

"The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
  —John Adams

"Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can."
  —Samuel Adams

"The true foundation of republican government is the equal right of every citizen in his person and property and in their management."
  —Thomas Jefferson to Samuel Kercheval, 1816.

It`s interesting to note that only landholders were allowed to vote when the Nation was founded.

The fundamental importance of property rights have been reaffirmed countless times by numerous sources. English Commentator William Blackstone believed a right to property

"tends to man's real happiness, and therefore justly concluding that . . . it is a part of the law of nature."

Daniel Webster stated

"No other rights are safe where property is not safe."

Pope Leo XIII in his 1891 Encyclical Rerum Novarum made it clear that Catholic doctrine recognizes the sanctity of property. 

If possession of property is at the pleasure of the state rather than a Divinely ordained right, it means that the ultimate owner is the government, and that the "owner" is merely a tenant who is then subject to whatever rules and qualifications the government sets down.  This means that the freedoms we take for granted — speech, press, assembly, etc. — can be circumscribed by this government.  Government can seize your property, forbid your use of land or buildings or personal effects if you fail to behave in the required manner.  How can you have freedom of the press, say, if the press and the presshouse are controlled by the government?  Freedom of Property is the lynchpin of these other freedoms.

Unfortunately, property rights have been under a continuous assault for quite some time. We have seen government impose property taxes, which essentially make the owner a tenant since he has to keep paying for the privilege of living on his own property.  We have had the Civil Rights Act which, although well intentioned, restricted the rights of business owners to choose their clientele.  We had the Fair Housing Act which restricted a property owners' right to sell to whomever he wished, restricted the right of property owners to covenant, and restricted the right of landlords to rent to whomever they choose. 

We have had Federal forfeiture laws which allow the government to simply seize property if they have reason to suspect criminality.  We have recently seen governments ordering landowners to maintain their property in a wilderness state if they have a persistent mudpuddle. We have seen local authorities ordering restaurateurs and bar owners to forcibly ban smoking in their establishments, despite their own wishes.  Now we have local governments taking peoples' property, not for the construction of roads or bridges as is permissible in the Constitution, but to sell to developers. And the Supreme Court of the United States claims there is no Federal issue here!

On the contrary, this is clearly a matter of Federal jurisdiction.  Since the beneficiaries of these Eminent Domain forfeitures will often be out—of—state businesses and organizations, the Interstate Commerce Clause comes into effect.  In fact, the Supremes recently ruled that even medical marijuana use of plants grown and consumed within a single state is regulated under this clause, thus affirming their view that virtually every activity falls within their purview.  Strangely enough John Paul Stevens wrote the majority opinion in both cases.  His respect for Federalism is oddly divided; to Stevens, everything falls under his authority except where property rights are concerned

So, who benefits from this?  Obviously, developers and wealthy interests stand to gain by being able to purchase property at market rates rather than being soaked by holdout sellers.  Also, the local governments and planning boards will make out quite well from the (ahem) incentives they will surely receive. 

The big winner here, though, will be environmentalists. Without Federal intervention the Greens will be able to persuade city councils to exercise Eminent Domain not for development but to close vast tracts of land.  They will be able to forcibly evict property owners to make way for darter snails and dung beetles, and liberal city councils will find their palms well greased to exercise their Mafioso—like powers.  Unless the States themselves act to remedy this, we will see enviromentalist land—grabs everywhere —especially in "blue state" areas like Vermont, Washington State, and New Mexico.

Even though this particular issue may well be resolved at the state level, it still points to a dark malady in this country.  We have simply lost our zeal for the right to property.  Too many people think that democracy should extend to property rights, and that the will of the majority should trump a landholder or property owner's rights. 

This is at heart a problem which transcends government; this is a moral and philosophical issue. Why, for instance, aren`t we controlling our borders?  I would argue that part of the reason is that Americans don`t value property rights enough; many of us don`t want to scratch a line in the Arizona sand and say "You shall not cross!"  Many among us don`t believe we have a right to possess this land, and don 't believe that our ownership means we can exclude others.  Too many Americans no longer believe in the sanctity of property.

This particular case may not, in itself, be a watershed moment; however, the issues it raises are vitally important to the future freedom and security of the United States.  Will we remain a land where freedom is jealously guarded, where we enjoy security in our persons and property, or will we follow the ruinous path trod by the socialist and fascist?  What separates us from the despot is our right to property. It is our first right, it is a gift from God, and we would do well to remember that.

Timothy Birdnow is a property manager in St. Louis, who publishes the website Birdblog.