The Future of Private Property

It seems to just bug the dickens out of progressives, but we still have "private property" in these here United States. The question is, for how much longer? Private property has come under assault in America, and these assaults are coming mainly from government. But before we look at the barrage of assaults on private property rights here in America, let's review the underpinnings of those rights in our foundational documents.

The word "property" appears four times in the Constitution. In the original Constitution, "property" appears once, in the Bill of Rights it appears twice, and it appears just once in all the other amendments. The first iteration of "property" is in Article IV, Section 3: "...the Territory or other Property belonging to the United States." The two mentions in Amendment V: "No person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The final iteration is in Amendment XIV, Section 1: "...nor shall any State deprive any person of life, liberty, or property, without due process of law..."

So in all the Constitution there is only one mention of private property. Yet, America's economic system, capitalism, depends on private property and the rights associated with it. Although the word "property" doesn't appear in the Declaration of Independence, the Founders took property rights seriously. To see how property was viewed circa 1776, read "The Unalienable Right of Property: Its Foundation, Erosion and Restoration" by Richard A. Huenefeld. "Property" and its plural appear 67 times in The Federalist Papers, with the most mentions in papers No. 10, No. 54, and No. 60.

The Supreme Court dealt a heavy blow to private property rights in its 2005 decision in Kelo v. City of New London., which involved "the use of eminent domain to transfer land from one private owner to another private owner." Plaintiffs claimed that confiscation of their properties would violate the Amendment V; specifically the "public use" restriction in the Takings Clause. The implications of this decision were captured on Independence Day 2005 by Carol Saviak, who wrote:

Property rights aren't imbued by government; they are inherent natural human rights. By holding official title to assets, we gain the ability [to] store the value of our daily labor. The simple economic power derived from property ownership protects us from a primary dependence on government, which would open the door to the subjugation or oppression of our other human rights.

Another growing outrage against private property rights is government confiscation through asset forfeiture. In "Civil Forfeiture Laws And The Continued Assault On Private Property" at Forbes, Chip Mellor writes:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets -- all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with a crime let alone be convicted to lose homes, cars, cash or other property.

In "The Forfeiture Racket" at Reason, Radley Balko writes:

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture.

In addition to its seizure, government prevents Americans from using their property as they wish. During the New Deal era, the feds wouldn't allow farmers to cultivate wheat on their own land to feed themselves and their families. That un-American edict was challenged but upheld by Wickard v. Filburn. Nowadays the Agriculture Department takes a back seat to the Environmental Protection Agency (EPA) in interfering with property rights. The EPA's overreach in its zealous protection of so-called "wetlands" is especially vexing. But with Sackett v. Environmental Protection Agency there's been pushback. At WND, Bob Unruh relates the story of Mike and Chantell Sackett's run-in with the EPA when building their Idaho dream house. At The Blaze, Becket Adams quotes Justice Alito: "...this kind of thing can't happen in the United States."

Another assault against private property is property taxes. One person hit especially hard by such taxes is former Kansas City, Missouri Mayor Charles Wheeler. As reported by the Kansas City Star, Mr. Wheeler, 86, had failed to "pay about $40,000 in back property taxes on [his] house, which is valued at $620,138."(KC really knows how to treat a former mayor and medical doctor. Watch videos here and here.)

But Dr. Wheeler isn't the only Jackson County resident to feel the pain of taxes on their property. A May 7 front page story in the Star reports the case of the Ratcliffs and the assessment on their house -- it's gone up by a factor of nearly five in one year.

Folks often say that they don't own their mortgaged house, the bank does. But in what sense does an American ever own anything, even when paid off, if every year he must pay a tax on it? If he doesn't pay his property tax, the government seizes his property.

The property tax taxes a fundamental right: property. (Just as certain enlightened jurisdictions don't tax food, there shouldn't be any property tax levied on one's primary dwelling, i.e. one's shelter.)

Corporate bonds are a type of private property. But in the case of the auto bailouts in 2009, corporate bondholders' property rights were squashed; their property was seized and awarded to the United Auto Workers union. In an interview at Human Events, Richard Mourdock said: "This is the first time in the history of American bankruptcy law when secured creditors received less than unsecured creditors."The auto bailouts set theft as a precedent. (Here's a fine article on the auto bailouts by Amy Payne at Heritage.)

Patents, copyrights, industrial designs, trade secrets and much else are all a type of property: "intellectual property." The case of Association for Molecular Pathology v. Myriad Genetics may test the limits of ownership. What's at issue is whether DNA can be patented. But should the stuff of life be "ownable"? The position of LawPundit is that natural DNA is probably not patentable, but re-engineered DNA could be. Oral arguments were heard on April 15. (For more, go here and here.)

Some Americans associate property with materialism. Some, like the anarchist Proudhon, may think "property is theft." But property can "own" its possessor, as anyone who "owns" an older house can attest. Property provides a means to improve our lives. Do you really want to go back, like Thoreau, to nature?

In the novel The English Patient, the title character is asked what he hates most, and he answers: "Ownership." Some Americans are conflicted about ownership. That may be due to the fact that there was a time in America when one could own people. About 150 years ago, another human being could be part of one's private property, part of one's portfolio. To iron out that wrinkle in American property rights, America suffered her greatest cataclysm, costing about 600,000 military lives.

Nonetheless, property and property rights are a big deal in America. We believe we have a right to own stuff, especially if we have created it. George W. Bush pushed the idea of an "ownership society," which has a certain appeal for "real" Americans.

Progressives stomp on property rights that have existed for centuries, yet try to convince the American people that they have property rights where they've never existed, such as with Social Security. But as confirmed by Flemming v. Nestor in 1960, paying Social Security taxes does not create a property right to Social Security benefits. (You might want to consider owning your retirement.)

The main thing about the American system is "limited government." Private property is a check against unlimited government, a hedge against Leviathan. The growing outrages against private property are an indication that the real America is fading. We need to hit some giant reset button and return to being a constitutional republic, or we risk losing more than just our damned property.

Jon N. Hall is a programmer/analyst from Kansas City.


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