Book Review: Cornerstone of Liberty – Property Rights in 21st Century America

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Cornerstone of Liberty – Property Rights in 21st Century America
by Timothy Sandefur and Christina Sandefur (Cato Institute, 2016)

[NOTE: Watch a video of the authors’ presentation of their book at The Heartland Institute at this link.]

The law is a lion that even a written constitution has not been able to tame.  Individual liberties seem to be constantly at risk from city hall to the federal government.  The Sandefurs focus the law’s attack on real property or “fish in a barrel.”  If the government can successfully restrict your use, development, improvement, rental or sale of your land, you can’t just pick it up and move it to Nebraska, you are: fish in a barrel.  If you don’t like regulation on your business, you can move; not so, the land.

The right to own and exchange property is a glorious civil right.  It was the central focus of the nation’s first civil rights act in 1866.  The Sandefurs highlight how important property is to the individual, his development, his income and his conscience.  But they also show its importance to the community.  Secure property rights provide a fence between mine and thine.  Good fences make good neighbors.  If you doubt that property is the most peaceful of institutions just read the passages about Poltown in Detroit where raw power and politics ruled when ownership rights were taken away.  I would add to the Sandefur list of positive attributes: land ownership is an important rung on the ladder of upward mobility.  You don’t need a graduate degree to own and maintain a two flat building or rent out an extra room with AirBnB.  With strong property rights, economic security becomes an accessible dream.

Did the founding fathers intend to protect economic and property rights?  The Sandefurs quite eloquently make that case.  My favorite passages help explain the relationship between property and “the pursuit of happiness.”  It was always a bit disappointing to me that Thomas Jefferson didn’t stick to his first draft of the Declaration of Independence: “…life, liberty and property.”  But property is simply a manifestation of the pursuit of happiness. And the opposite is also true, as stated in the Cato Letters: property generates independence which makes for happiness.  Property and happiness are much just the same thing.

The Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause of the 14th Amendment combined with the Ninth Amendment protect our natural rights both economic and personal.  Contrary to the written constitution, our founder’s presumption of liberty has been turned on its head, placing the burden of proof on the people to protect their liberties and happiness.  As a result, James Madison’s “stronger factions” can more easily oppress everyone including discrete and insular minorities i.e. everyone without political connections.

The infamous Kelo decision which turned the “public use” clause of the 5th Amendment into a “public benefit or a revenue enhancement clause” is but a tip of a dangerous iceberg.  In just 5 years, governments across the country have brought 10s of thousands of eminent domain cases.  As bad as that may sound, that’s not where the dangers lie.  Eminent domain, at least, requires payment to those who lose their property.  Creative legislatures have now figured out how to accomplish the same thing without having to pay: regulatory takings.  “You can keep your property; you just can’t use it.”

If the book had ended there, I would have had nothing but praise.  It didn’t and that’s what makes it a great book.  If we sat around waiting for the courts to restore our lost constitutional rights, our kids might be old and gray.  Surprisingly, the State of Arizona passed Proposition 207.  Not only does it do away with Kelo, it forces payment to land owners for any regulatory taking where the government cannot sustain the burden of proving by a preponderance of the evidence that its regulation is substantially related to the actual health and safety of the public.

I completely understand the need to protect certain owls and the quality of our air and water.  These laws benefit society in general and should therefore be paid by all of us, if we can afford it.  Government should not be allowed to tell the owner of a forest that he can’t build on it because of an owl.  That wrongfully places the entire financial burden of public goals on a single person.  Proposition 207 forces the government to compensate the land owner for his loss in value or withdraw its regulation.

Proposition 207 forces government to view property rights as a liberty interest.  Land can be regulated to protect the rights of others, but that type of regulation must be accomplished in the least restrictive manner.  Any regulation of property to accomplish a social goal (protect an owl) is a taking for which there must be reasonable compensation.

The great principles of the presumption of liberty, established by our Constitution are being accomplished by legislative action like Proposition 207.  Other legislatures will follow only if they believe that their state will be left behind without similar laws.  Can the benefits of 207 be quantified?  Arizonians can now follow their dreams.  Is growth in that state higher?  Is demand for real estate higher? Are they happier?  I am, now that I read this book.

[First published at the Freedom Pub.]