The Mero Moment: Property Wrongs – January 14, 2016

If American liberty has any meaning at all, property rights are at the center of that meaning. So important were property rights to our founding fathers that you can hardly read any of their writings that do not mention them. So it’s with no little amount of curiosity that our founding fathers replaced the word “property” among our inalienable rights with the term “pursuit of happiness” in our Declaration of Independence.

by Paul Mero
by Paul Mero

This subject has been written about and debated endlessly within the freedom movement. Libertarians insist the exclusion was a matter of prose, not substance. Conservatives take the opposite position. Regardless, both camps understand that the ability of a person to possess private property is essential to true freedom. When private property disappears, so too does our freedom.

Certainly our pioneer forefathers understood its importance. And, like every other state in the Union, private property is constitutionally protected in Utah. Our Utah constitution reads in part, “All men have an inherent and inalienable right to enjoy and defend their lives and liberties; [and] to acquire, possess and protect property….”

But is it peculiar that our constitution omits the word “use” among our protected property rights? Our Utah libertarian friends think so and are pushing the state Legislature to pass an amendment to the state constitution. They would like our constitution to read, “…acquire, possess, use and protect property….” They believe, in good libertarian fashion, omitting the word “use” is an effrontery to their personal liberty.

Interestingly, no reasonable person who has had any say in this matter in U.S. history thinks likewise – not our founding fathers, not our pioneer forefathers, and not even a very liberty-minded United States Supreme Court who settled this issue in 1926. In fact, it was Utah’s own George Sutherland who wrote the majority opinion for the Supreme Court in 1926 ensuring that land use was not a fundamental property right. This is the same George Sutherland who opposed every jot and tittle of New Deal socialism. He was no statist.

So why should the Utah Legislature kick this bad idea to the curb of politics? The simple reason is that my personal liberty does not always trump the common good and the health and safety of the community in which I live. I dare say these libertarians pushing this idea wouldn’t want to live in the kind of community wherein their own abstract ideals take precedent. There is a reason they live in tract homes, in orderly neighborhood enclaves – and that reason is precisely why their idea to amend the state constitution is wrongheaded.

Justice Sutherland and his Supreme Court colleagues rightly protected health and safety within communities and rightly extended the common good to address public nuisances and even greedy land speculation. Our libertarian friends in their little tract homes would lack characteristic self-interest if they followed their own juvenile thinking about letting their neighbors do whatever they want on their properties. They live in their little tract homes, in the neighborhoods they’ve chosen, precisely because they don’t want to live next to a micro-brewery or adult bookstore or a farm with pigs and goats or a dry cleaners. If they did, they would move to areas zoned for those purposes.

As their Exhibit A, Utah libertarians cite a case down in the town of Virgin where a couple bought a property near the entrance of Zions National Park. They bought it on speculation not knowing what they would do with it but knowing it might have some commercial potential in such a sweet location. Indeed, they decided to turn the spot into a trailer park. Neighbors objected, the town council ultimately approved the trailer park but the neighbors put it to a referendum and the property owners lost. Our libertarian friends see that process as an effrontery to personal liberty. Whereas Justice Sutherland forewarned them against this behavior in 1926 – your personal right to land speculation does not always trump community interests. Period.

Adding the word “use” to Utah’s existing protection of property rights would bend those rights in the direction of absolute application – and we know that no right is absolute in a free society. Once again, our libertarian friends let ideology get in the way of common sense.

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