Property Rights

Let me state at the outset that I believe in the rights to property, though my definition of those rights may well differ from those who can not conceive of the advent of new understandings as effecting our understanding of old concepts. The basic question is, “How absolute are property rights?" But before I get into new understandings, I believe it is always useful to understand the historical context because I am a strong believer in, to put it in Shakespeare’s words, that “what’s past is prologue” (The Tempest, Act II, Scene 1,) and that a true understanding of any concept requires an understanding of its history.

In the days of monarchy, and in feudal societies, the first priority was to keep the vast estates which were owned by the aristocracy intact, and to pass them on from generation to generation without any dilution. For that reason they adopted the concept of “primogeniture,” that decreed that when the Lord passed away the whole estate would pass to the eldest son. This meant that generation after generation all lands, and essentially that was the only type of wealth of consequence (there was gold of course but I suspect that in so far as that was part of the property it was deemed to be part of the estate.) would be kept intact and in the hands of a small aristocracy.

When the Declaration of Independence was drafted by Thomas Jefferson and adopted in that form it spoke of, “…inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It should be noted that there is no reference to property, and this is particularly instructive, because it clearly was not an oversight, for this phrase was taken verbatim from the Virginia Declaration of Rights, which uses the language, “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” so the omission of any reference to property could not have been merely an oversight.

When we look at the U.S. Constitution there too is no reference to property except in Article VI, Section 3 and there the reference is to “Property belonging to the United States…” This, however, is remedied in the Fifth Amendment of the Bill of Rights which sets forth that no person, “be deprived of life, liberty, or property, without due process of law;” Unfortunately, until the Civil war this became more a source for oppression than the instrument of liberty which its language would suggest, for despite what would appear to be its clear language, it was never considered to apply to that portion of the population of African ancestry, who were deprived of their liberty, often of their life, and the portion about property was the basis for protecting slaves as property, and the legal foundation for the fugitive slave acts, which provided for heavy penalties to be imposed upon anyone who assisted slaves to escape from bondage. It was not until after the Civil War that the Constitution added this provision in Amendment XIV and made it applicable to the states, that its association with oppression was removed.

But at no time in its history were property rights considered as absolutes. The concept of Riparian Rights goes back to at least A.D. 500, with the Code of Justinian, for the Roman Empire, then England and the British Commonwealth, and ultimately United States common law, water in its natural watercourse has been legally held to be public property--held by the state in trust for all people--rather than private property.

All of which brings me to the beginning of this treatise and the basic question, “How absolute are property rights?” My answer, (and I do not believe that my Republican friends, or any of the advocates of the political Right would agree) is their rights exist only to the extent that they do not infringe on the rights of other property owners or on the rights of the public at large.

This may seem self evident, but it has been observed mostly in its breach, as numerous industries took it as their right to discharge their waste into streams adjoining their property, thereby befouling the water, which violated the rights of the property owners downstream to have the water come to their property in its natural pure uncontaminated condition, or to befoul the ground water which it shares with adjoining property owners, as well as the air, endangering the health of its citizens or even, as has now become evident endangering the very existence of human kind on earth, as the globe heats and icebergs melt.

But they claim this as their property right, and further argue that for the government of all the people to limit their rapacious infringement of the property tights of others is somehow an infringement on theirs. They claim that they have every right to put pollutants into the air so that they can make cheap power, and the fact that these pollutants infringe the property rights of all the people who own land over which the polluted air drifts with the winds, is not a right that they need take cognizance of. When it is proposed that the government on behalf of the people demand that they pay for the right to infringe on the rights of all, they scream it is unfair taxation. But it is not taxation to make them pay for the use of that which is not theirs, and the air that we all breathe is by no stretch of the imagination theirs. During all these years, they have taken without leave and without right, the water, the air, the land beneath the ground, when all they own, or can own, is the land on which they stand and nothing that infringes one inch beyond that land, whether above or below it belongs to them and may be taken for their use, or be despoiled by them, except by leave and after just compensation to those that they have harmed.

To claim that their property rights are infringed, when government in its rightful duty takes steps to protect the right of others in the enjoyment of theirs, is the height of ignominy.