Property rights are the foundation of this country. But even though they are some of the most important rights we have, they sometimes get ignored.
Here’s a transcript of our conversation:
Connor: Hey, Brittany.
Brittany: Hi, Connor.
Connor: You do a lot of work, that touches on property rights. And so I would love, given your experience, your professional experience working on that issue, how would you kind of summarize how, property rights first, what do you mean by property rights? And then give a kind of analysis or a summary of how property rights stand here in America.
Brittany: Yeah, okay. So by property rights, that means every single individual’s right, to own their own property. And what property means, I always like that its time is money. We’ll say that. ’cause you work and you earn your money, and then what you buy with that money, which is a lot of times property like that is what you own. You own all that. Your parents, if they own a home, that home is theirs. If they own land, that land is theirs. Even the items they own are theirs. They own those. So a lot of times the government will try to take that property in one way or another, and they are very good at figuring out how to do that. And there’s little loopholes, like even if you have a house, they can use something called an eminent domain that basically means, oh, we think that we could build a road where your house is, and since the road is gonna be used by the public, we can take your house and give you however much we decide for it. So it’s a little bit scary because as far as where property rights stand, that was one of the most important things when our country was founded because the king in Britain, they were really bad with respect to the colonist property rights. And so you’d think that that would be one of the things we secure the most in this country. But property rights are actually under attack. And I think they have been, I think it’s hard to pinpoint when they became under attack because it’s almost like as soon as our country formed, people started messing up. The government got a little bit too powerful. But property rights are definitely, I think they’re being threatened right now. I do think we’re turning a corner. I think if you look at Supreme Court cases, which is the highest court of the land, and they are able to interpret the laws and say, this is what this means. And they have been voting more in favor of property rights. So I think that we’re headed in a better direction, but I think property rights are definitely, we should be a little worried about where they’re going right now.
Connor: So what’s interesting to me, having worked on this issue as well, is that a lot of people rightly think of the United States Constitution and you know, what does it say in the Fifth Amendment an eminent domain? That is something that, under the Constitution, the government can take your property for, you know, a public purpose. What a lot of people never really think about when it comes to, property rights is the local protections that exist. So couple years ago at Libertas Institute, we actually did some research about this and we wanted to see what do all the state constitutions, have to say about property rights? ’cause it’s one thing to look at the United States constitutions, but we should also, or constitution, we should also, I think, look at the state constitutions and say, you know, do they have any greater protections? And my theory was that they did, right? Because property is a local thing. It’s not a federal thing, right? Under the 10th Amendment, which, is part of the Bill of Rights of the United States Constitution. And it said that, you know, any of the powers that weren’t given or delegated to the federal government were kept by the states and the people. So the idea at the time of the founding was that, hey, look, we’re gonna create this federal government, we’re gonna delegate or share with it, you know, a few of these powers that we states have ourselves, but everything else we’re gonna do and keep ourselves. And so property rights, like, you know, your home, your parents, you know, business where they work, or the church down the road, or all these things, right? Dealing with property, that’s a local government issue. And so we thought, okay, let’s look at the state constitutions. Now, we looked at ours first. That’s obviously where anyone would probably start. I pulled up Utah’s constitution and I found something really interesting. So it did have some information about, not information. It had some protection, some restrictions as it pertained to property rights. And so I started reading through it. I said, what does this say? And I’m gonna summarize, I’m gonna use more simple words. Cause you know, in constitutions they always use these like, you know, fancy words and stuff. I’m not gonna do that. And so in our constitution, it says that you have the right to buy or obtain property. So like if someone gives it to you or your grandma dies and she leaves you know her home, or you buy a car or buy a home, whatever, you have the right to get property. Okay? Then it said you have the right to possess it, which means to own it. It says, yeah. If you, if you buy that land, then you can own it.
Brittany: It’s funny to me, they have to smell that land right?
Connor: Exactly. Right. Why do you have to put that in there? Isn’t that obvious? But they do, which is fine, I guess. So you have the right to get it. You have the right to own it. And then finally it says you have the right to defend it. In other words, if someone tries to, you know, burn your home down, you are authorized under Utah’s constitution to defend your property. Now you might think, all right, that’s cool. I mean, those are some good details, right? You have the right to you know, buy property. You have the right to own it. Once you buy it and you have the right to defend it, there’s something really important that is omitted that that’s not part of that list, that wasn’t in the Constitution. In fact, a glaring huge problem. The problem. Cause of course you can buy property, of course, you can own it, of course, you can defend it. Cause if you own it, then it, you know, follows that You could defend it from people trying to take it from you. Those are just simple and silly and maybe not even necessary, Brittany, to your point, what did they leave out? They left out the right to use your property. So they say, Hey, you can buy that land, and when you buy it, you can own it. It’ll be on your, you know, official paperwork and congratulations. You own it. And you know, if anyone tries to come and do something bad to it, sure you can defend it. But the Constitution in our state does not protect the right to use your property. And so what happens with that? It means that there’s no constitutional protection. If there’s something that’s constitutionally protected, it’s really hard for politicians to regulate it. It’s really hard for them to pass laws because they have to have a very, very good reason, because people are gonna challenge you.
Brittany: Not impossible. They do try.
Connor: Exactly much like the second amendment, which we’ve talked about before. There are gun control laws. And even though the second Amendment says, you know, you have the right to keep and bear arms, courts will say, well, for this narrow little reason, we’re gonna let you have this gun control law. But you can’t ban guns and you can’t totally, you know, take the right away. And so if you have a constitutionally protected right, it makes it much harder for the government to restrict that right now. So the question is, if we don’t like me living in Utah, if I don’t have the right to use my property, if I don’t have the constitutionally protected, right, that means it’s way easier for the government to regulate to pass regulations and laws and restrictions on my use of property. And this is what happens, not just in Utah, in every single state, which I’ll get to in a moment where you see crazy stories, people wanting to have chickens in their backyard and the city saying no, someone wanting to build a shed in their backyard and the city punishing them with a fine, someone wanting to build steps and they have to get all these crazy permits and pay all this money just to build steps on their own property. Someone wanting to host a garage sale on their driveway and the city, oh no, we have a law against that. You can’t do garage sales. And so because our right to use our property is not constitutionally protected in Utah or actually anywhere, then that means that the government has no handcuffs on it in terms of restricting our use of property. This to me is like one of the biggest problems when it comes to property rights. So I said, okay, if this is the case in Utah, what’s happening elsewhere?
Brittany: Because Utah’s relatively better than.
Connor: Yeah. Cause because Utah is pretty good for property, right? So you would think, not crazy stories like you see elsewhere. So we started looking at every state constitution, and this was really interesting to me. About half of the states had language, much like I described for Utah. You have the right to get something, to own it and defend it. The other states had nothing. And what was really interesting, was when I looked into some of the early histories when these constitutional conventions were happening, maybe this isn’t too surprising, but it was new for me to learn that they were basically what we would today call copy-and-paste language from other state constitutions. In other words, when Utah was, you know, joining the country and becoming a state, and they had a constitutional convention, as most elected officials do, they don’t just sit around and think, let’s come up with something entirely new and start from scratch. No, they say, well, let’s look at what other states have done and borrow bits and pieces and then, you know, figure out what we wanna do. But let’s have like a template or a, you know, a quick start. And so that’s what was happening. A lot of these states were kind of borrowing language from other states. And that’s where half of the states have this language is ’cause many of the states would kind of borrow from it as things would progress in time and more states would come on board. So it wasn’t this like great debate, Hey, we need to protect. It’s just that like one state happened to do it that way. And so then another state is like, yeah, okay, sounds good. And then another state did it and it was this kind of organic or spontaneous, you know, type of thing. And so in my mind, Brittany, the big problem here is that those words are kind of hollow. They don’t really do much. They give kind of the appearance of property rights, but they don’t actually protect your right to use your property. And, maybe we can take the conversation in our final minutes in this direction. Brittany, are you at all familiar with the term NIMBY?
Brittany: Yes, I am very familiar with the term.
Connor: What does NIMBY mean?
Brittany: That is, so it’s not a word, it’s an acronym, right? So not in my backyard is what that means.
Connor: What does that mean?
Brittany: So, it’s when, usually it’s like wealthier people. Actually I’ve dealt, I’ve seen, ’cause I work a lot on this issue too, is they support things like in, in theory, right? Like, oh, I wish we had more housing. I wish we had more this. But every time someone makes, wants to make a law that impacts their own neighborhood, like maybe they wanna make a law that makes it easier to build houses, then all of a sudden they go, well, not in my backyard. ’cause I don’t want these houses to maybe attract people who can’t afford the kind of houses I’m living in. So maybe we’ll get lower income people in this neighborhood and we don’t want that. So even though we want more housing, we don’t want it this way. Not in my backyard. That’s what that means.
Connor: And in decades past, governments have used, it’s called zoning. Zoning is the type of laws where cities say, we’re only gonna let you, you know, build these types of homes or your property.
Brittany: Or sometimes even like, you can’t turn your garage into an apartment. That stuff like that happens a lot.
Connor: Right. Or you have to paint your fence a certain shade of brown or like crazy stuff. And in decades past, these types of laws were used to segregate people and say, well, we only want, you know, black people over here and you know, white people over here. And so the government control has been very aggressive and unfortunate. And so what happens is you’ll have people who say, I want the right to do what I want on my property, and I want to build and I want to do these things. And suddenly when their neighbor wants to do something on their property, that person says, oh no, they shouldn’t be allowed to do that. And so what we find, what I have found over the years working on this is that very few people actually support property rights. They love property rights for themself, but they want to preserve the ability to control other people’s use of property. They wanna make sure that guy down the street doesn’t do something crazy with his property. They wanna make sure that that developer down the road doesn’t build a, you know, high-rise condominium. They wanna make sure that they can control other people. And so we find ourselves in a society where people give what’s called lip service to property rights. And what that means is they’ll use words to say they support property rights, but they often do not actually support property rights. Because that would mean if they did, like imagine, Brittany, imagine if we had a, I’ll just pick on Utah again. Let’s say we had a constitutional amendment in Utah and it added the word use. So you have the right to, you know, to buy it, to own it, to defend it, and to use it. Suddenly all these NIMBY people, these people who want to, Hey, we shall, we ought to pass a law and they shouldn’t be able to build, you know, apartments in their basement. That should be against the law. Suddenly those people who complain and want to control their neighbors would be unable to just like, there’s people down the road from me who say, you shouldn’t have guns, that’s dangerous. And if I didn’t have a constitutionally protected right, those people might be able to get laws passed in our city that took my guns away. And so that is the problem with not having a constitutionally protected, right, is it allows your neighbors to control you. It allows them to say, oh, you shouldn’t be able to do that on your property. No lemonade stands for kids on the sidewalk. That’s against the law, right? Because there’s no constitutional right. That’s why constitutions are so important to guarantee and better protect our rights. They’re not perfect. Just because something is on a piece of paper and a constitution does not mean you actually have that right and you won’t be bothered. But it’s way better than leaving it out entirely, which is what’s happening right now. So, Brittany, you and I, as we work on property rights, have a lot of work to do. I think it’s a very uphill battle because our constitutions are pretty weak when it comes to protecting our property. And that has given a lot of power to our neighbors and people in the community who want to control our behavior and want to restrict our right to do what we want on property. Maybe the final word I’ll say here is that if we really believe in property rights, then we need to be very laid back when it comes to what other people do on their property, right as the golden rule. If we don’t want them controlling whether I have chickens in the backyard or rent my basement out to someone or paint my, you know, my garage, the American flag or whatever. If I don’t want other people telling me what to do, then I need to resist the temptation to restrict what they wanna do. Even though I may not like it or disagree with it. We need to respect one another’s rights. And when it comes to our property, we are a long way off. We got a lot of work to do. So Brittany, thanks. Until next time, we’ll talk to you later.
Brittany: Talk To you later.