Property Rights – The Core Issue

Missouri, 12/09/2005:

An understanding of the heritage of the American concept of property rights is necessary before we can properly deal with that issue. Equipped with that understanding, our concerns will go far beyond any individual neighborhood or development – we will be concerned about the very integrity of our system of constitutional governance. Any social compact that permits the stronger, more powerful to forcefully take the property of the weaker members of society will eventually allow similar takings of “property” of a more personal nature, like life and liberty.

MERCANTILISM vs CAPITALISM
History bears out time and time again the fact that economic freedom marches at the head of our other liberties. Suppression of economic freedom is as pervasive as an occupying army – that's the way the founding fathers looked at it in the 1700's.

You see, at the root of the American Revolution was a rejection of British mercantilism - an unjust use of the state's power to favor some members of society over others. Mercantilism results in state-protected monopolies that limit entrepreneurial opportunities and advancement of lower classes. Under mercantilism class stratification becomes the rule of the day.

The same year our founding fathers rejected mercantilism by publishing The Declaration of Independence, Scottish economist, Adam Smith published “The Wealth of Nations”. His book became the source of inspiration for a new economic model based on the understanding that our liberties are “endowed by our Creator”, not other men.

These “inalienable rights” were not guaranteed happiness, but they did include the right to the “pursuit of happiness”. Although our constitution became the guaranteer of the right to pursue happiness, it was Adam Smith's free market economic model, “capitalism”, that enabled that pursuit. And the foundation of capitalism is private property rights. Without security in property rights our economy, and our liberty, are transient.

THE ROLE OF GOVERNMENT
The founding fathers also leaned heavily on the works of another European - John Locke. In his Second Treatise on Civil Government he wrote, "The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property." Missouri's own constitution echoes that truth:

“That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.”

Eighty eight years before the Declaration of Independence, Locke espoused the principles behind the colonies' right to "dissolve the political bands" with King George:

"The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence."

King George's system of mercantilism was diametrically opposed to Locke's principles – principles that from the time of the Magna Charta all Englishmen, including the colonists, had grown to expect as basic rights. The British king not only failed to protect the colonist's property, thus failing in the “principle office of government”, he also became the greatest threat to that property. And in Locke's words, when the government abuses its power to the detriment of the property of the people, it puts itself in a "state of war" with the people.

The so called “American Revolution” was really not a revolution at all, but an “absolv(ing) from farther obedience”, justified by the “state of war” King George imposed on the colonists – that's what the list of “grievances” in the Declaration was all about.. The colonies were not seeking to overthrow King George, just secede or “dissolve the political bands” with him.

The revolutionary war was essentially a fight over ideals, mercantilism verses capitalism!

LIFE, LIBERTY, AND ESTATE
From a Lockean perspective as well at that of the Founding Fathers, this was about much more than just real-estate.

Locke insisted that the “natural state” of man was one of independence from all others, but men “have a mind to unite for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, 'Property'”.

If that phrase sounds familiar it is because Thomas Jefferson borrowed from it when he wrote that

“...all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”

Jefferson used “pursuit of happiness” to include the whole realm of freedom, but Locke referred to our spectrum of freedoms “by the general name 'property'”.

James Madison, heralded as the father of our constitution, explained it this way:

[This] term ("property") in its particular application means that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man's land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights....

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government,that alone is a just government, which impartially secures to every man, whatever is his own....

That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism.

A RETURN TO MERCANTILISM
If Madison were alive today in Missouri, he might think he was in Turkey or Indostan! Certainly it is despotism when the state (or city) lends it's sword to a private developer or utility so they can seize the property of “one class of citizens for the service of the rest”!

Missouri's current practice of using eminent domain for non-public uses is a return to mercantilism and a violation of everything America stands for! To ignore this terrible injustice is a slap in the face of all the men and women who bled and died to establish and then, later, protect and defend our constitution.

RESTORATION OF ORIGINAL PRINCIPLES
So what should we do about it? Nothing less than restoring constitutional safeguards should be accepted.

• Those safeguards should prohibit the use of eminent domain when the result will be anything other than a public project that is owned and used by the public at large. Neither economic development nor increased tax base fit this description.

• The loopholes that have facilitated the abusive use of eminent domain should be eliminated - “blight” should be dealt with by public nuisance laws, not eminent domain.

• Government should not be allowed to take property under the guise of a public project only to hand over title or use to a private entity. The original owner should have the first opportunity to buy back his property if the government entity decides to sell it within some reasonable period from the time of the taking. That will prevent all sorts of mischief.

• Neither should government be allowed to hoard property. If it seizes property for a supposed public use, but then does not pursue that use within a reasonable amount of time, the original owner should have a right to the return of his property.

• When the use really is for the public, eminent domain should only be allowed if it is a truly necessary project – sacred property rights should not be violated just to satisfy the whims of society.

• Even if the project is public and is genuinely necessary, government should strive to find willing sellers and if there are none, strive to create the least possible burden to those involved in a forced taking.

• When a legitimate taking is necessary, the owner should truly receive “just compensation”, as the constitution requires. He should be paid for inconvenience, relocation costs, loss of time, investment value, and well enough to be able to buy comparable property elsewhere.

• The “taking” of property must be recognized in all of its forms. Laws and regulations that restrict an otherwise legitimate right to the use, sale, or enjoyment of one's property (uses that don't infringe on another's rights, that is), are “takings”, nonetheless, and should be compensated for.

Anyone who might think that he is not affected by our present system of property rights abuse had better think again. No one's property is safe as things are now. And if the powerful are allowed to use the sword of the state to take real-estate, they had better wonder what other types of “property” might be next.

And even if you are not ever personally a victim of of this abuse, you are still affected. The words of John Donne express it best:

No man is an Island,
entire of it self;
every man is a piece of the Continent,
a part of the main;
if a clod be washed away by the sea,
Europe is the less,
as well as if a promontory were,
as well as if a manor of thy friends or of thine own were;
any man's death diminishes me,
because I am involved in Mankind;
And therefore never send to
know for whom the bell tolls;
it tolls for thee.

By: Ron Calzone
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Read: How Should We Deal With Blight?

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