Property Rights

Note: For the purposes of this discussion, we are focusing on land ownership and use, though the term 'property' is certainly extended to include a wide range of objects, belongings and intellectual property as well.

Do a quick Internet search on "property rights" and you will find a wide array of websites, ranging from the reasonable to the absurd. What becomes most evident, quite quickly, is that property rights are a highly emotional issue for many people. Dominating the online debate are right-wing websites, with questionable basis in fact; property rights seem to be a lightning rod for such thinkers. Diluting the debate over property rights with emotional and frightening rhetoric does a disservice to the issue, which is as philosophical as it is political. Conservative groups can easily use the complex issue as a simple rallying cry, for their position is easily articulated: "Property owners own the property, and therefore, the government should not have control over that property." The progressive stance is more complicated and takes far more words to express: "While respecting the fundamental ideals of private property ownership, and while recognizing these ideals as important to American culture, we must also acknowledge the need to protect the public and the environment from harmful private uses, and to do so may require government regulation or seizure without the consent of the property owner and often without compensation." You can see which position may be more appealing and popular. But hopefully, you can also see which position is the better reasoned. Unfortunately, though, as Raymond Coletta, Professor of Law at the University of the Pacific, points out, "This is not a rational debate where the better of two sides will triumph; weighed policy arguments are not necessarily the most convincing."

In his essay on the biological basis for American sentiment about property rights, Coletta writes that "We have developed an individual braggadocio toward real property, focusing on the “my-ness” of land and its economic meaning to individual status. We exploit rather than conserve this valued resource. Private land ownership has gained an idiosyncratic American personality reflecting notions of economic power, individual self-meaning, and personal self-worth. Not surprisingly, where regulation leads to lessening land values, we feel unjustly compromised as well as personally devalued." Therefore, due to America's heritage and history, Americans "perceive limitations on land use as a threat and are psychologically wired to presume any such limitation as a taking of a natural right."

Interestingly, feelings about property rights appear to be flexible according to personal circumstance. In a 2001 speech on "Property Rights and Public Values" at the National Building Museum, Donovan Rypkema, a Republican with a background in real estate and economic development, argued that "The "property rights" movement is the most selectively aggrieved political force in America. Those who loudly proclaim, "It's my land and you can't tell me what to do with it" are quick to appear before City Council when a homeless shelter is moving in next door or a sanitary land fill is proposed next to their cottage. And their argument won't be "I'm against the homeless" or "Waste shouldn't be disposed of" but rather, "That action will have an adverse affect on my property value, and you, City Council members, need to prevent that." See the full text of the speech here.

Therefore, any productive discourse on property rights must shed its emotional rhetoric and focus on reason. Clearly, there must be a balance between preserving the rights of property owners and the rights of the government to protect its people, its environment, and pursue a community vision. In order to do this, one must understand the different vantages of those involved in the property rights debate.

The conservative viewpoint on private property is founded in the US Constitution in the Fifth Amendment, which states that "… nor shall private property be taken for public use, without just compensation." Conservatives note the high value that the Founding Fathers placed on private ownership, and feel that this ideal is one of the elements which make America stand out from the rest of the world. To conservatives, private property represents power, a critical tool in democracy, and private property is inherently linked with civil rights.

The Libertarian Party focuses on private property rights as one of the fundamental tenets of their platform, which explicates well the philosophical basis of the conservative belief. The Libertarian position states that "There is no conflict between property rights and human rights. Indeed, property rights are the rights of humans with respect to property, and as such, are entitled to the same respect and protection as all other human rights. All rights are inextricably linked with property rights. Such rights as the freedom from involuntary servitude as well as the freedom of speech and the freedom of press are based on self-ownership… The owners of property have the full right to control, use, dispose of -- or in any manner enjoy -- their property without interference, until and unless the exercise of their control infringes the valid rights of others."

The Libertarian position acknowledges the need to protect "the valid rights of others" from infringement under someone's exercise of private property rights. However, few groups agree on the definition and implications of "valid rights." For example, if a neighbor opened a home business in a residential area with frequent customers visiting the property, does this infringe upon the rights of the owners of surrounding homes? Some may feel that it is within the rights of the homeowner to establish a business and use the property as the owner sees fit. Others may be concerned with the rights of other homeowners, who bought their property with the assurance of a quiet residential neighborhood, now burdened with increased traffic, loud noise, and a variety of safety hazards. Local zoning generally prohibits certain uses of property or limits property to one use, protecting neighbors, but, in the opinion of others, also limiting the rights of the property owner.

Even still, the Libertarian platform states that "We also condemn current government efforts to regulate or ban the use of property in the name of aesthetic values, risk, moral standards, cost-benefit estimates, or the promotion or restriction of economic growth." Progressives argue that there are legitimate government interests, such as protection of public welfare, that necessitate the regulation of private property. For example, a law requiring a homeowner to have a fence of certain dimensions surrounding a private swimming pool may infringe on an owner's choice to have a fence of different dimensions and materials, or not to have a fence at all. However, progressives feel that limitations on property owner's rights such as this are necessary to advance the government's primary task of protecting public health and safety. But where is the line? Should a local government be able to decide whether you may build a deck on your home? Or develop a baseball field in your backyard? Or turn a piece of undeveloped property into a commercial use rather than residential?

A good example of this tension is found in the raging debate over light regulations on private property. Many environmentalists and concerned community members have voiced objection to too many, too bright lights on residential and commercial properties. These lights not only disturb those who live near them, but also can disrupt natural environmental cycles and prevent everyone from enjoying a dark night sky. See our full discussion of light pollution here. However, private property advocates argue that any limitations on lighting represent an assault on personal rights, such as the right to protect one's home with a bright security light, or the right to advertise one's business with a lit sign.

Environmentalists argue that property cannot be solely viewed as a series of independent, privately owned parcels. Instead, each piece of land is part of a bigger ecosystem, often containing important natural resources. To allow each property owner to do as she or he wishes with the land may then be to allow the destruction of an important resource. Many environmentalists feel that economic and personal interests cannot be allowed to supersede the crucial goal of environmental protection. In a 1993 speech, then-director of the Natural Resources Law Center Larry MacDonnell raised these issues, asking "To what degree can you affect someone's property interests in the pursuit of environmental values? To what degree can you intrude on my expectations as a holder and owner of a property right to achieve other agreed-upon benefits for society?" (See this page for the full text of the speech.)

If a piece of private property is classified as a wetland, floodplain, other environmental designation, or if the property is home to a protected species of animal, the government may exercise its right to protect and regulate use of the property, regardless of the property owner's sentiments. For an in-depth discussion of this issue, and related implications such as compensation, please see our section on Regulatory Takings.

Conversely, many conservatives do not believe that even legitimate government objectives will require regulation or seizure of private land. Defenders of Property Rights, a Washington, DC-based law firm dedicated to the protection of private property, declares that "We believe that society can achieve important social objectives such as protection of our environment and preservation of our national heritage without destroying private property rights or undermining free market principles." They do not see a tension between public needs and private ownership. Secretary of the Interior Gale Norton calls herself a "conservative conservationist" and advocates "market-based incentives" to encourage individuals or businesses to pursue environmentally or community friendly methods of meeting standards rather than strict government regulations. However, it is hard to imagine that "suggestions" will have the same impact on protecting our communities and environment as regulations.

Innovative new techniques are improving the way in which both the government and individuals can assert their interests. Transferable Development Rights (TDRs), allow a property owner to sell the development rights to a property while retaining all other rights and private ownership of the property. This process allows local governments to protect their precious open spaces, while also emphasizing the importance of individual rights and freedoms. It is also less costly for the municipality than buying the property outright. In essence, the system works for everyone. A recent Brookings Institute study on TDRs found that more than half of the TDR programs are located in just four states: Pennsylvania, California, Florida, and Maryland; the great success experienced in these states indicates that the TDR program needs to be publicized and utilized in other areas of the country as well.

The government is intimately involved with private ownership of property. The Bureau of Land Management of the Department of the Interior administers 262 million acres of public land in the western part of the United States, totaling one-eighth of the country. Additionally, the Bureau owns 300 million acres of subsurface mineral resources. The government is the largest property owner in the country. Through regulations and incentives, private property owners can be forced or enticed to follow the government's objectives with land use, whether it be for economic development, increasing infrastructure, environmental protection, or acting for community health and welfare; it is, after all, this governmental power which keeps our neighborhoods quiet, our environment stable, and our children safe.

Links

Please see our other sections on related topics:

Regulatory Takings

Eminent Domain

Light Pollution

Internet Links

"Property Rights and Publc Values" - An entertaining and interesting transcript of a 2001 speech by Donovan Rypkema regarding property rights and the regulatory takings issue

"The Evolution of Propert Rights, Incremental Change, and the Progressive Resolution of Intractable Conflict" - A very interesting speech given by the former Director of the Natural Resources Law Center, Larry MacDonnell, regarding the relationship between property rights and the environment, with a special emphasis on Western natural resources

Property Rights Foundation of America - Many legislative updates and activist information for those concerned about private property rights; a distinctly conservative outlook

Libertarian Party - More information on this vocal third party and its stance on private property rights

International Dark-Sky Association - Scientific information and community activism suggestions for combating light pollution

About TDRs - For a more in-depth look at TDRs and how to implement a TDR program in your area,
visit this site

Bureau of Land Management - The governmental entity responsible for managing the millions of acres of western public land; learn more about their programs and policies

Department of the Interior - Read more about the direction of conservation programs under the Bush administration but don't necessarily believe All that you read.