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Master of Your Domain: The Impact of the Kelo Decision

Why property rights are so crucial to freedom

Adam Summers
June 26, 2006

Property rights issues are once again on the minds of many Americans as we mark the first anniversary of the Supreme Court's now infamous 5-4 Kelo v. City of New London eminent domain decision. The decision affirmed the ability of governments to forcibly take private property for "public purposes," even if those purposes serve fairly narrow private interests.

The decision sparked outrage among many Americans, who viewed the process of taking land from one private party and giving it to another, even with "just compensation," to be fundamentally unfair and an abuse of government power. Opinion polls have shown opposition to the use of eminent domain for economic development ranging from 70 percent to over 90 percent. This spawned a healthy revolt against abusive land seizures by governments across the nation.

Over the past year, at least 325 measures in 47 states have been proposed to protect against eminent domain abuses at the state level. In California alone, there have been 87 bills and several ballot initiatives proposed. One of those initiatives, the "Protect Our Homes" initiative, may make the November 2006 ballot, pending signature verification. Over one million signatures were submitted in support of the measure last month, far more than the nearly 600,000 required to qualify for the ballot.

But what has been the result of all the fist-waving and teeth-gnashing following the Kelo decision?

Sadly, momentum for the issue seems to have waned in most of the country and the initial indignation over the Supreme Court's decision has been met not with a bang, but a whimper.

Several states—including Alabama, Delaware, Ohio, and Texas—have succeeded in passing eminent domain reforms, but most of these do not have any real teeth. According to Timothy Sandefur of the Pacific Legal Foundation, laws like those in Alabama and Texas leave open the door to eminent domain abuse by still allowing governments to take land they deem "blighted." While "blighted" property traditionally refers to property so dangerous to the public health that it must be removed, the term is so vaguely defined in the new legislation that it could mean anything the government wishes, including a perceived "need" for economic development. Thus, the vocabulary may have changed from "economic development" to "blight," but the recipe for takings abuse remains the same.

At the federal level, the House of Representatives last November overwhelmingly passed H.R. 4128, the Private Property Rights Protection Act of 2005, which would deny Federal economic development funds to state and local governments that utilize eminent domain for this purpose. Unfortunately, no action has been taken on the bill in the Senate, where it has languished in the Judiciary Committee for over seven months.

Why Property Matters

The Founding Fathers knew well the importance of private property in "securing the blessings of liberty." The Declaration of Independence asserts our unalienable rights to "life, liberty, and the pursuit of happiness," which was derived from John Locke's Two Treatises of Government (1689), in which Locke describes our reasons for forming government in the first place: man "is willing to join in society with others . . . for the mutual preservation of their lives, liberties and estates, which I call by the general name, property."

Earlier in the same essay, Locke explains the importance of property even more starkly:

James Madison, the fourth President of the United States and "Father of the Constitution," similarly maintained in 1792:

Notice that Locke and Madison include among "property" people's very lives, their property in their own existence and the right to preserve that existence. Other forms of property are no less important, for they are necessary to sustain our lives. If we are to live, we must also provide for food, clothing, shelter, and other needs and luxuries. We can obtain these things only through the fruits of our labor or through charity (leaving aside the possibility of violating others' rights through theft, either directly or by using the government as our agent to take from another and give to us).

In other words, you can talk all you want about the freedom of speech, but what good is it if you are unable to own a printing press or the paper (or computer) on which to write your ideas? You can pay lip service to the freedom of association, the freedom to peaceably assemble, and the freedom to practice any religion you want (or none at all), but what good is it if you are not permitted the opportunity to own the land on which to exercise these rights? You can have the right to keep and bear arms, but what good is it if you are not allowed to own any place to keep them?

Property rights are not just an academic concept or an economic expediency, they are inexorably intertwined with the human rights and freedoms we hold so dear. This is why the power of eminent domain is one of government's most evil, insidious powers.

But, you may argue, when government invokes eminent domain to take someone's property, the "Takings Clause" of the Fifth Amendment says it must pay "just compensation" so that the property owner is no worse off than before the taking. The key question that must be asked is: Who determines whether the compensation is "just"?

It certainly isn't just to the property owners who simply desire to be left alone and remain in their homes; otherwise, they would have simply accepted a buyout offer. So, the government has an appraisal done, oftentimes producing a lowball figure, and demands that the property owner take the offer and leave. Never mind that the government-acquired appraisal may be only a fraction of what the owner could get for the property from another private party (the government's claims of its offer's "fair market value" notwithstanding). The government can offer below market value (or reduce the value of the property unilaterally by limiting its use through wetlands regulations or other tactics, but that must be a subject for another piece) because it knows the property owner will probably be forced to take it. Sure, he could try to fight a lengthy and costly court battle, but the government has access to skilled lawyers and unlimited funds; the property owner's funds are quite limited, and, thus, so may be his ability to obtain capable legal talent. So, he is typically stuck with insufficient compensation for his property, and must additionally bear the time, energy, stress, and other costs associated with picking up his roots and relocating.

The Takings Clause Revisited

Perhaps the Founding Fathers erred in allowing government the power to take someone's property for any reason, regardless of "just compensation." If someone has obtained his property legally and poses no threat to others through his use of the property, why should government be able to forcibly evict him at all?

In fact, there were some among the American revolutionaries that did feel government should be prohibited from taking private property for any reason. The Declaration of Rights of the Pennsylvania Constitution of 1776 affirms: "no part of a man's property can be justly taken from him or applied to public uses without his own consent or that of his legal representatives." This language is repeated in the Delaware Declaration of Rights (1776) and the Vermont Constitution of 1777.

Put another way, what difference does it make if the government takes one's property for "public use" or "private use"? After all, the public might get more "use" out of a new Wal-Mart than a fancy new government building, and the jobs and low-priced goods Wal-Mart offers would be available to anyone, as opposed to, say, a school, which serves only a certain segment of the population (those with school-aged children). Moreover, governments routinely take property in the form of taxes and redistribute it to other private parties. Even in cases where money is purportedly spent in the interest of the taxpayer, many would question whether such acts constitute "just compensation." Why should one's "money property" not enjoy the same protection as his "land property" against government takings and redistribution to private parties?

Conclusions

The Kelo decision was not earth-shattering in that it merely confirmed what has been going on across the country for years and years. The Supreme Court's faith in the "public purpose" doctrine of eminent domain was nonetheless incredibly disappointing to those who recognize the importance of property rights in a free society.

The silver lining to the decision is that it made the plight of innocent homeowners abused by the government real to many who have thus far ignored such government transgressions because they did not affect them directly. The firestorm of support for eminent domain reform seems to have diminished somewhat over the past year, however. We must be ever vigilant and wary of watered-down "reform" measures if we are to regain the protections our private property so richly deserves.

Private property is not merely the things we purchase with our money. It is the things that sustain and enrich our lives, the places and things that allow us to express our other rights and enjoy our other freedoms. Property rights are human rights. The Founding Fathers understood this well. This is why they spoke of property in the same vein as life and liberty. If we are unwilling to demand that our property be protected, rather than seized by a capricious and avaricious government, we will find, only when it is too late, that we have sacrificed our lives and our liberties as well.

During the course of researching this article, I came across a number of great quotes on property rights from several of the Founding Fathers and some of the great thinkers and adherents to the philosophy of freedom. There were far too many to include in this piece, but I thought readers of this article might enjoy them as much as I did, so I am including them here:

Property Quotes:

All men have equal rights to liberty, to their property, and to the protection of the laws.

— Voltaire, Essay on Manners, 1756

The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.

— Friedrich August von Hayek, The Road to Serfdom, 1944

If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.

— Friedrich August von Hayek, The Constitution of Liberty, 1960

Property is surely a right of mankind as real as liberty.

— John Adams, Dissertation on the Canon and the Feudal Law, 1765

Property must be secured, or liberty cannot exist.

— John Adams, A Balanced Government (1790) in Discourses on Davila (1805), reprinted in 6 Works of John Adams (1851 ed.)

Now what liberty can there be where property is taken away without consent?

— Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting, November 20, 1772

Private property and freedom are inseparable.

— George Washington

You cannot have a free society without private property.

— Milton Friedman

Man is born into the universe with a personality that is his own. He has a right that is founded upon the constitution of the universe to have property that is his own. Ultimately, property rights and personal rights are the same thing. The one cannot be preserved if the other be violated.

— Calvin Coolidge, "Have faith in Massachusetts," Massachusetts Senate President Acceptance Speech, January 7, 1914

The right of liberty means man's right to individual action, individual initiative and individual property. Without the right to private property no independent action is possible.

— Ayn Rand, "The Only Path to Tomorrow," 1944

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.

— Ayn Rand, "Man's Rights" in The Virtue of Selfishness, 1964

The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary. What is personal liberty, if it does not draw after it the right to enjoy the fruits of our own industry? What is political liberty, if it imparts only perpetual poverty to us and all our posterity? What is the privilege of a vote, if the majority of the hour may sweep away the earnings of our whole lives, to gratify the rapacity of the indolent, the cunning, or the profligate, who are borne into power upon the tide of a temporary popularity?

— Joseph Story, Associate Justice of the United States Supreme Court, William W. Story, ed., "The Value and Importance of Legal Studies" in Miscellaneous Writings of Joseph Story (Boston: C. C. Little and J. Brown, 1852), 503, 519

The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property.

— Potter Stewart, Associate Justice of the United States Supreme Court, Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972)

Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?

— Frederic Bastiat, The Law, 1850

The three great rights are so bound together as to be essentially one right. To give a man his life but deny him his liberty, is to take from him all that makes his life worth living. To give him his liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.

— George Sutherland, Associate Justice of the United States Supreme Court, 1921, quoted in Cleon Skousen, The Five Thousand Year Leap (Washington, DC: National Center for Constitutional.Studies, 1981), p. 173.

The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property.

— John Locke, Two Treatises of Government, 1690, Book II, Chapter IX, Sec. 124

The supreme power cannot take from any man any part of his property without his own consent. . . . Men therefore in society having property, they have such a right to the goods, which by the law of the community are theirs, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any commonwealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure.

— John Locke, Two Treatises of Government, Book II, Chapter XI, Sec. 138

There is, therefore, secondly, another way whereby governments are dissolved, and that is, when the legislative, or the prince, either of them, act contrary to their trust.

First, the legislative acts against the trust reposed in them, when they endeavor to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties, or fortunes of the people.

— John Locke, Two Treatises of Government, 1690, Book II, Chapter XIX, Sec. 221

Whenever the legislators endeavor 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 further obedience.

— John Locke, Two Treatises of Government, 1690, Book II, Chapter XIX, Sec. 222

All men are created equally free and independent, and have certain inherent rights, of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing the obtaining of happiness and safety.

— George Mason, First Draft, Virginia Declaration of Rights, May 1776

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

— George Mason, Virginia Declaration of Rights, Article 1, 1776

All men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected.

— George Mason, Virginia Declaration of Rights, Article 6, 1776

No part of a man's property can be justly taken from him or applied to public uses without his own consent or that of his legal representatives.

— This language is included in several early state constitutions, including the Pennsylvania Constitution of 1776, Declaration of Rights, Article XIII; Delaware Declaration of Rights, Section 10, 1776; and Vermont Constitution of 1777, Chapter 1, Article IX.

No power on earth has a right to take our property from us without our consent.

— John Jay, First Chief Justice of the United States Supreme Court and co-author of The Federalist Papers, "Address to the People of Great Britain," October 1774

So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual�s private rights, as modeled by the municipal law.

— Sir William Blackstone, Commentaries on the Laws of England, 1765

It is evident that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and inalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labor and industry. The preservation of property then is a primary object of the social compact. . . . Where is the security, where is the inviolability of property, if the legislature, by a private act, affecting particular persons only, can take land from one citizen, who acquired it legally, and vest it in another?

— William Paterson, Associate Justice of the United States Supreme Court and signer of the Constitution, Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 309, 311-12 (1795)

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.

— James Madison, "Property," National Gazette, March 27, 1792

Government is instituted no less for protection of the property, than of the persons, of individuals.

— James Madison, Federalist No. 54

It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated.

— James Madison, Speech at the Virginia Constitutional Convention, December 2, 1829

By Liberty I understand the Power which every Man has over his own Actions, and his Right to enjoy the Fruits of his Labour, Art, and Industry, as far as by it he hurts not the Society, or any Members of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys. The Fruits of a Man�s honest Industry are the just Rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is sole Lord and Arbitrer of his own private Actions and Property.

— Thomas Gordon, Cato's Letters, No. 62, January 20, 1721

As property, honestly obtained, is best secured by an equality of rights, so ill-gotten property depends for protection on a monopoly of rights. He who has robbed another of his property, will next endeavor to disarm him of his rights, to secure that property; for when the robber becomes the legislator he believes himself secure.

— Thomas Paine, Dissertations on First Principles of Government, 1795

I consider the war of America against Britain as the country's war, the public's war, or the war of the people in their own behalf, for the security of their natural rights, and the protection of their own property.

— Thomas Paine, On Financing the War, 1782

The true foundation of republican government is the equal right of every citizen in his person and property, and in their management. Try by this, as a tally, every provision of our Constitution, and see if it hangs directly on the will of the people.

— Thomas Jefferson, Letter to Samuel Kercheval, July 12, 1816, in Albert Ellery Bergh, ed., "The Writings of Thomas Jefferson," (Washington, D.C.: Thomas Jefferson Memorial Association, 1907), Vol. 15, p. 36.

Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race.

— William Howard Taft, Popular Government, 1913


Adam B. Summers is a policy analyst at Reason Foundation. An archive of his work is here and Reason's eminent domain research and commentary is here.


Adam Summers is Senior Policy Analyst


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