Private property rights somehow just don't have the sex appeal of taxes, food safety, the environment or animal welfare. Partly that’s because private property rights have always been seen as foundational to capitalism, free enterprise and the American ethos. As a result, most folks find it difficult to believe the right to private property could really be in jeopardy. I’m willing to wager that any opinion poll would conclude overwhelming support among Americans for private property rights.
No, the attack on private property rights has been subtle – an overt frontal attack would never be sustained. Little bite by little bite has been the strategy, coming via expansion of government regulation, oversight and control, legal battles designed to weaken private property rights, and expansion of government in ways once inconceivable.
Supporters of private property rights initially were comforted that the courts system and ultimately the U.S. Supreme Court would validate the principle of private property as it is spelled out in the constitution. But with the Kelo v. City of New London decision a few years ago, that hope evaporated – the court said essentially you own your property until the government decides someone else can use it more effectively. Of course, once the government was allowed to usurp private property rights for its own best interest, private entities quickly understood they could gain control of private property by using the government to control private property.
There have always been limitations to our rights. After all, we can't scream “fire” in a crowded theatre despite freedom of speech.
And, the right to private property has had its limits, too. For instance, I can't store toxic waste on my land without first proving that it’s stored properly and in a manner that won't harm others. Of course, if taken to the absurd, it would mean my neighbors might also be able to decide what color I can paint my house.
The courts were supposed to be the mechanism to maintain the proper balance. Ironically, the judiciary has become the weapon of choice to make changes and subvert laws and the constitution, both of which are subject to the will of the people. Thus, the courts, the institution that was supposed to protect citizens’ rights as defined by the constitution from the will of the majority, has become an instrument to take those rights from individuals at the bequest of a minority that can’t enact legislation but that asserts that its position is morally superior and thus justified.
As a result, people are turning to legislation to reinforce private property rights in an attempt to stop the erosion created by the courts. Proposition 11 in Texas is such an initiative designed to limit the government's ability to invoke their right of eminent domain and the taking of private property.
The proposition has been getting considerable play. Fundamentally, I'm opposed to these types of ballot initiatives, as they’ve largely been a sneaky way to take complex issues and phrase them in a way to encourage the electorate to make decisions based on 60-second commercials and well-crafted rhetoric. Once passed, these measures unleash a torrent of unintended consequences that become nearly impossible to rectify.
Still, when government refuses to limit itself, and the courts sanction such abuses to achieve certain aims, then it becomes the only recourse for the will of the majority to be expressed.
Regardless, the battle over private property rights is escalating and, at this point, supporters of private property rights are largely losing the battle.