Property Rights and Liberty

Liberty is a cherished American ideal, guaranteed and protected by the Declaration of Independence, the US Constitution and Bill of Rights, and the focus of countless legal and political debates.  Recently, Tea Party activists are making troubling claims that sustainable development is un-American because it restricts liberty.

More specifically, the Tea Party raises concerns that sustainable development and smart growth practices threaten liberty because they impact how privately owned land is used and developed.  Private property, they point out, is a mechanism for protecting liberty.  Citing founding father John Adams they argue that restricting private property rights risks restricting liberty: “Property must be secured or liberty cannot exist.”

With land you own, so the argument goes, you should be protected from any interference to do what you want and think what you want, and to accumulate wealth and power that cannot be taken. Thus, private property protects people and society against arbitrary and abusive use of political power, say, by the King of England, the US federal government, or nosy neighbors.

Your neighbors, also property owners, can make similar claims. And, of course, members of your community who don’t own land also have liberties that must be respected (landowners are not the only citizens that have liberties).  Conflict erupts, and a role for community governance arises, when one person’s liberties impinge on another’s liberties.  Specifically with regard to land use, things your neighbors do on their lands can impact your liberties if, for instance, they emit noise and dust or impound or pollute water, air, or wildlife flowing your way.  Conflict also results if your neighbors limit your ability to develop your property’s full economic potential.  For example, they might deny you access to needed roads, infrastructure, or other economic development opportunities.  Conflict also results when things you and your neighbors do affects the liberties of others in your community. In all these cases, someone’s liberties are curtailed because of how someone else uses land.

Resolving these conflicts requires governing land uses,  hence impacting property rights. To minimize conflict, the community establishes laws and policies to set expectations for acceptable behavior.  For the most part, people find ways to work within this framework and life goes on.  Yet, when significant conflicts erupt, the community, through its government, must negotiate a solution that maximizes the common good. Some people may lose liberty, but the intent of community-led negotiations is that more people end up better off than worse off and the common good is enhanced.

Smart growth and sustainable development planning are mechanisms by which a community negotiates these limits and sets these expectations.

Do not construe these arguments as an attack of private property rights.  Private property rights limit arbitrary use of political power, enables markets, rewards innovation, supports core freedoms and liberties, and, although not specifically defined in the US Constitution, are nonetheless a cornerstone of American democracy, economy, entrepreneurship, and spirit.  These are all good things that I support. Rather, this essay seeks to respond to the Tea Party assertions that efforts to craft sustainable development trajectories for our communities are somehow un-American because these efforts, by necessity of addressing how land is used, affect property rights.

Property rights, liberty, and their connections to American history and future need to be studied, debated, and respected in our applications of self-governance.  They deserve careful attention by both advocates and opponents of sustainable development.  The rhetorical sound bites found on Tea Party websites and heard at recent Tea Party demonstrations are inadequate, as are the casual dismal of these concerns by land use planers and sustainable development advocates. Unfortunately, scholarly literature on these topics is difficult to penetrate.  Two resources I find useful are listed below.  Plug them into your internet search engine to locate a pdf.  I find Freyfogle the most accessible of property rights scholars who are addressing sustainable development issues.

Property and Freedom by Benjamin Barros. 2009. New York University Journal of Law and Liberty.

Property and Liberty by Eric Freyfogle. 2011 Harvard Environmental Law Review.

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Hull is a Senior Fellow at the Center for Leadership in Global Sustainability
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One Response to Property Rights and Liberty

  1. Alena says:

    , I’ll venture some obsravetions. First, the passages that you and Fish consider promotion of religions of multi-culturalism, liberalism, or the like are not statements by Ginsburg of what she thinks education should foster, rather they are statements by Hastings of what it has adopted as its educational goals. When a state restricts access to a limited public forum, the law provides that the restriction must be reasonable, not necessarily the only or most reasonable one, but at least reasonable. Ginsburg merely found Hastings’ restriction reasonable in order to further the educational goals the college set, in part, by incorporating discrimination policies established by the state legislature. You would not, I trust, favor a court supplanting a state college’s educational goals with different goals of the court’s choosing.Note too that this is not a case about Hastings prohibiting or restricting CLS from excluding anyone it wants or saying whatever it wants. CLS remains free to do that. Rather this is about whether Hastings established reasonable conditions for the eligibility of a registered student organization, a status bringing entitlement to certain benefits such as use of school funds and facilities and the Hastings name and logo. It only seems reasonable that a school would have some say in who it gives its money and lends its name.I understand that some think that the government discriminates against them and their religion when it precludes them from discriminating (as the government would characterize it) against gays. The courts have occasionally confronted issues concerning whether and, if so, when the government may require people to do things contrary to their faith. They have generally ruled that the government cannot enact laws specifically aimed at a particular religion, but if the government enacts laws generally applicable to everyone or at least broad classes of people (e.g, laws concerning traffic, pollution, taxes, contracts, fraud, negligence), it can require everyone, including those who may object on religious grounds, to abide by them. (Were it otherwise and anyone could opt out of laws with the excuse that their religion requires or allows it, the government could hardly operate.) While the government has this power, it may (and sometimes does) choose to relieve individuals of this bind by including conscientious objector provisions or the like in the law.

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