You Want Property Rights Defended?
Yesterday's outpouring of concern in the conservative half of the blogosphere over the Supreme Court's decision in the Kelo case was striking, and, to those who recognize the importance of property rights, heartening. If you are concerned about the steady erosion of property rights, you should be very glad that the Senate has confirmed Judge Janice Rogers Brown to the D.C. Circuit Court of Appeals.
Because Judge Brown is one of the most eloquent and vigorous defenders of property rights on the contemporary scene. One of Brown's decisions that the Left tried to characterize as "out of the mainstream" was her dissent, while on the California Supreme Court, in a case called San Remo Hotel v. City and County of San Francisco. The case involved a restriction that the City of San Francisco placed on the owners of residence hotels that sought to convert to tourist hotels. The right to convert the use of the property was conditioned on the owner's creation of an equal number of low-income residence units, or payment of a special tax to underwrite the City's creation of low-income housing. Thus, the cost of supplying low-income housing within the City was shifted away from the taxpayers generally to a few hundred hotel owners, and the special levy was enforced by otherwise barring the hotel owners from putting their property to its most economic use. Justice Brown found the City's scheme to be both an uncontitutional taking and a violation of a California statute guaranteeing the right to convert such hotels.
Here is how Justice Brown began her dissent:
Americans are a diverse group of hard-working, confident, and creative people molded into a nation not by common ethnic identity, cultural legacy, or history; rather, Americans have been united by a dream—a dream of freedom, a vision of how free people might live. The dream has a history. The idea that property ownership is the essential prerequisite of liberty has long been “a fundamental tenet of Anglo-American constitutional thought.” (Ely, The Guardian of Every Other Right (1998) p. 43.) “Indeed, the framers saw property ownership as a buffer protecting individuals from government coercion. Arbitrary redistribution of property destroyed liberty, and thus the framers hoped to restrain attacks on property rights.” (Ibid.) “Property must be secured, or liberty cannot exist” (6 The Works of John Adams, Discourses on Davila (1851 ed.) p. 280), because property and liberty are, upon examination, one and the same thing.Private property is in essence a cluster of rights inuring to the benefit of the owner, freely exchangeable in accordance with the terms of private agreements, and recognized and protected by common consent. In the case of real property, this cluster of rights includes the right to exclude persons from certain physical space. In the case of intellectual property, it may include the right to employ a valuable method or process to the exclusion of others. In other words, private property represents zones of individual sovereignty—regions of autonomy within which we make our own choices.
But private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of the majorities that prevail in the political process—or, worse, the political powerbrokers who often control the government independently of majoritarian preferences. Thus, “the lamb [has been] committed to the custody of the wolf.” (6 The Works of John Adams, supra, at p. 280.) San Francisco has redefined the American dream. Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs.
The Kelo decision seems to have struck a nerve. Driving home from the airport this afternoon, I listened to Joe Soucheray, one of the most popular local talk show hosts in America, talking about the decision, which he views as more important than any other recent controversy. He expressed the view that we all woke up this morning in a different country as a result of a decision which holds, in essence, that the government's right to higher tax revenues is paramount over the citizens' rights as property owners. If there is a popular resurgence in understanding of, and support for, property rights, the Democrats may regret the day when they abandoned their filibuster of Judge Brown.
