Eminent domain abuse erodes property rights and liberty

By Christina Rutz for Flickr | https://www.flickr.com/photos/paparutzi/
By Christina Rutz for Flickr | https://www.flickr.com/photos/paparutzi/

WASHINGTON, September 17, 2014 — American political philosophy is largely based on the belief that free markets and the protection of private property rights are intrinsically tied to other freedoms. Economist Milton Friedman argued that capitalism is democracy applied to economics, that each of us vote with our dollars for the kinds of goods and services we want.

Our society has begun to move away from belief in the basic connection between economic freedom and political liberty. Government has become deeply enmeshed in the marketplace, often as a result of lobbying by business interests that have failed in the open market and want to be rescued by taxpayers, as in the case of Wall Street and General Motors.

Other business interests, such as agriculture, receive huge government subsidies as a result of their lobbying activities.

The Supreme Court has now permitted local and state governments to use eminent domain procedures to confiscate private property to enrich private individuals and corporations.  In the past, governments used eminent domain only for clearly public purposes, such as building schools, hospitals and highways.

Now governments confiscate private property so that developers can build new malls and shopping centers. The developers use their political influence and campaign contributions to get local officials to remove home-owners from their properties.

The purpose of these land seizures is clearly private, not public, not what eminent domain was meant to be used for. Why the Supreme Court’s commitment to property rights is so weak is difficult to understand.

To see how far we have come from our original understanding of the connection between private property and individual freedom, look back to our early history.

In his Second Treatise, John Locke, the philosopher who most significantly influenced the thinking of the Founding Fathers, wrote that, “The great and chief end … of man’s uniting into commonwealths, and putting themselves under government is the preservation of their property … Every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his.

“Whatsoever, then, he removed out of the state that nature hath provided and left it in, he hath mixed his labor with it, and joined to it something that is his own, and thereby makes it his own property.”

From the earliest days, the American colonists learned that the “common ownership” of property was both impractical and inequitable.

Discussing the experience in the Plymouth Colony, Professor Gottfried Dietze, in his book “In Defense Of Property,” writes that, “Irrespective of what each one of the colonists produced, everything went into a common warehouse and the government doled out the proceeds of the warehouse as need seemed to require.  However, this system soon proved to be unsatisfactory.

The warehouse was constantly running out of provisions and many of the colonists were starving. In view of this emergency, Governor Bradford and the remaining members of the colony agreed during the third winter to give up the common ownership and to permit each colonist to keep the products of his work. This gave an incentive to all.”

When Spring came, reported Governor Bradford, “the women now went willingly into ye field and took their little ones with them to set corn, which before would allege weakness, and inabilities; whom to have compelled would have been thought great tyranny and oppression. The result of these efforts was a happy one.”

Professor Dietze, reviewing the history of the American colonial period, as well as the thinking of the framers of the Constitution, concludes that, “the American Revolution became, to a great extent, a movement for the protection of property.”

James Otis’s treatise, “The Rights of The British Colonies Asserted and Proved,” published in 1764, requests the right to participate in Parliament as a means for the protection of the colonists’ liberty and property. The resolutions of the Stamp Act Congress of 1765, as well as John Dickinson’s  “Farmer’s Letters,” show that the colonists considered property rights as an essential part of freedom.

The Federal Constitutional Convention, many historians argue, was convened largely because of a belief in the ethics of property and the necessity to protect such property. John Adams declared, “Property is a right of mankind as surely as liberty. The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

Some argued that there is a dichotomy between “human rights” and “property rights.”  Such a dichotomy is, as the Founding Fathers understood, illusory. They believed that the right to the fruits of one’s labor, to private property, was an essential human right, one of the most important.

In their initial consideration about what kind of government to establish, the Founding Fathers, when they turned their attention to questions of economic organization, asked themselves which economic form would best maintain the free society they were in the process of creating. The answer was, free enterprise. For men suspicious of arbitrary government power, this was an obvious choice.

Friedman explains that, “The kind of economic organization that provides economic freedom directly, namely, competitive capitalism, also promotes political freedom because it separates economic power from political power and in this way enables the one to offset the other … Political freedom means the absence of coercion of a man by his fellow men.

“The fundamental threat to freedom is power to coerce, be it in the hands of a monarch, a dictator, an oligarchy, or a momentary majority. The preservation of freedom requires the elimination of such concentration of power to the fullest possible extent and the dispersal and distribution of whatever power cannot be eliminated, a system of checks and balances.

“By removing the organization of economic activity from the control of political authority, the market eliminated this source of coercive power. It enables economic strength to be a check to political power rather than a reinforcement.”

In today’s Washington, with no limits to money special interest groups can contribute to political campaigns, it is not free enterprise but crony capitalism which seems to dominate.  Many business interests, it seems, prefer government bailouts, subsidies, and support to the vagaries of the free market, where businesses are permitted to fail.

Politicians in a democracy usually submit to the incentives before them. Defending free enterprise is a far more precarious position than embracing the desires of those who can enrich your campaign and your prospects for remaining in office or, as is becoming increasingly common, hire you as a highly paid lobbyist when you leave office.

Once we sever the link between free markets and other freedoms, we may soon learn that these other freedoms have become increasingly precarious. If government can confiscate your home through eminent domain so that a shopping center can be built, how confident can we be that freedom of the press, religion and free speech may also be limited for some allegedly worthy purpose?

In turning our backs on the idea of a genuine free market, Republicans and Democrats are co-conspirators. Both parties have forgotten the Founding Fathers’ conviction that freedom in economics goes hand-in-hand with other freedoms. And the rest of us who acquiesce in these practices bear responsibility as well.

Freedom is not lost all at once. It is a slippery slope, one all of us are now on.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.