How important are private property rights? What does a society look like that has no property rights, if that’s even possible? How did the Founding Fathers think about property rights?
This week Timothy and Christina Sandefur join us for a conversation about an essential aspect of what it means to be free. Timothy notes that, “If you can’t own something, you can’t have other kinds of rights.”
When talking about the effect property rights have on the world around them, Timothy mentions the Wallace Stevens poem “Anecdote of the Jar,” and Trevor talks about the 1980 movie from Jamie Uys, The Gods Must Be Crazy.
Trevor Burrus: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Trevor Burrus.
Aaron Ross Powell: And I’m Aaron Powell.
Trevor Burrus: Joining us today are Timothy Sandefur and Christina Sandefur. Tim is the Vice President for Litigation at the Goldwater Institute and this is I think your fourth time on the show, I think.
Timothy Sandefur: Yes, that’s right.
Trevor Burrus: And Christina is the Executive Vice President of the Goldwater Institute. They’re the co‐authors of the just published, revised edition of Cornerstone of Liberty: Property Rights in 21st Century America. Welcome to Free Thoughts.
Timothy Sandefur: Thank you.
Christina Sandefur: Thank you.
Trevor Burrus: So we will start with the title. Cornerstone of Liberty. Is that – I can see someone being like, “Oh, yeah. They’re overselling this. It’s a little bit extreme. It’s just property rights.” Why is it called “cornerstone of liberty”?
Timothy Sandefur: Well, private property rights are an essential if not the essential aspect of what it means to be free. If you can’t own something, you can’t have other kinds of rights. So you can’t have freedom of press unless you can own the devices necessary to print things, a printer or a printing press. You can’t have freedom of religion if the government owns all the churches. I mean if the government of Alabama had owned all the churches, Martin Luther King couldn’t have gotten up in the pulpit and said segregation is immoral because he would have lost his church to the government.
So the private property rights, the right to own things, yourself and the things that you have justly accumulated, that you’ve built or acquired by trades with other people is a central part of what it means to be a free person.
Aaron Ross Powell: So our Bernie Sanders voting friends I could see saying that’s precisely backwards in the sense that like – so the free press, you say you can’t have the free press unless you can own this stuff. But they might say, look, if we have totally protected private property of the kind that you advocate, then the rich people can buy up the press and no one has really free press except for those few plutocrats who are lucky enough to own it. So what we really need is government to step in and make sure that this stuff is actually free as opposed to just hoarded by the few.
Timothy Sandefur: Such an argument rests on what you very often find in these kinds of arguments, this notion that bureaucracy is populated by people other than human beings, that greed and self‐interest and ignorance and so forth are only confined to us mere mortals; but that if the government is in charge, those things won’t occur.
So it is true of course that if the rich man in town owns the printing press and refuses to allow me to publish my views, my ability to express myself is more limited. But the idea that well therefore the government will own the press and give us all access to it ignores the fact that once the government owns it, it has even less incentive to allow us to print what we want and even more incentive to deprive us of our freedom.
Christina Sandefur: Well, and keep in mind that the right to free speech is a right against the government. So in other words, the government can’t infringe on your right to speak freely but it doesn’t mean that society has to give you a soapbox in which to make that speech.
Trevor Burrus: What does a society look like that has no property rights, if that’s even feasible?
Timothy Sandefur: You know, it’s not feasible and I tried to imagine what it would really be like to truly have no property rights because of course no society has ever accomplished this although very tragically many have tried.
It would be a sort of science fiction world in which there were no boundaries between individuals because of course if you own – if you didn’t have property rights, you wouldn’t own your own self. You wouldn’t own your own breath. You wouldn’t own your own thoughts. You wouldn’t own your own liver or blood and so to truly live in a society where there were no property rights, I imagine it as a sort of this solipsistic undivided entity in which there is no distinction between me and other people.
Some people imagine that to be what the state of heavenly bliss would be like, but I think it actually is more like hell because there’s no division between me and another person. Then it’s also not possible for me to love that other person, to communicate with that other person, to be differentiated in any way from that other person. So a society where there truly were no property rights, of course von Mises showed that it would be impossible to actually have such a thing work. But I think even if you try to imagine it, what you end up imagining is sort of this solipsistic entity where there’s no division between this and that.
Trevor Burrus: Kind of like the Borg. Yeah, we got to get to Star Trek.
Timothy Sandefur: That’s right.
Christina Sandefur: When John Lennon said, “Imagine no possessions. It’s easy if you try,” he was quite rightly wrong and it’s a good thing that he was wrong.
Trevor Burrus: I was thinking about when I was reading the first part of your book, which is a really good job of just explaining what property rights are and why they’re important in how they develop – it’s hard to think of them not developing, but it made me think of The Gods Must Be Crazy.
Timothy Sandefur: Oh, yeah.
Trevor Burrus: Which is an interesting movie about a tribe that finds a Coke bottle and they haven’t actually – have a system of who owns it or there aren’t enough of them to go around. Now some people would say this was a problem clearly with not enough Coke bottles. They had this sort of idea of property enforced on them because they used the word “mine” and it sort of destroyed the whole thing around them. Is that – so property rights in that sense can be destructive for a society and some say – or maybe another way to think about it is that they create peace if they’re done correctly?
Timothy Sandefur: Have you seen the movie Christina?
Christina Sandefur: I haven’t actually. I’ve been told that I should. But yeah, I haven’t gotten around to it.
Timothy Sandefur: So the movie is about an airplane pilot throws a Coke bottle out of the window as he’s flying over …
Trevor Burrus: Sub‐Saharan Africa.
Timothy Sandefur: No, I think it’s Australia, isn’t it?
Trevor Burrus: No, no, it’s Africa.
Timothy Sandefur: Oh, OK. So anyway, so – and then the tribe finds all sorts of different uses for this Coke bottle and it kind of entered – and it’s sort of a movie version of the Wallace Stevens poem about the jar on a hill in Tennessee. That creates a differentiation in nature where there never was one. That’s a brilliant example because – in fact what we write about in the book, we talk about the Israeli kibbutz system which was this effort to create socialist utopias in Israel, which of course failed.
One of the reasons it failed according to the historians of the subject is that after World War Two, a lot of guys came back from the war with little trinkets that they had picked up during the war, particularly toasters. They would bring the toaster in to the communal kitchen and give it to their wives and pretty soon, it’s like the apple in Eden.
Now I think the apple in Eden is a great thing because I think Eden was a state of mindless servitude of bliss instead of happiness. So in a sense it draws that first line on that solipsistic world where there’s no differentiation and it creates a sort of a cascade effect where eventually other wives want toasters.
Once you have a toaster, then you want some private space in the kitchen and then the kids want to sleep with their parents instead of sleeping in the communal bunkhouse and it creates this – introduces this idea of individualism and individuality which to go back to your Borg example is how they defeat the Borg in Star Trek: The Next Generation. They introduced a concept of individuals into a single Borg and unit, who then goes back and introduces it to the Borg kind.
Christina Sandefur: Also sounds like if you give a mouse a cookie.
Timothy Sandefur: Yeah.
Aaron Ross Powell: But OK, so – but the subtitle of this book is Property Rights in 21st Century America. So we’re talking about America which is this kind of radical anti‐property. It’s not at all what anyone – it’s not on the table. When we are talking about property rights and what the limits of them should be in America, we’re talking about much more marginal stuff. Like, we’ve got to build a highway and your house is in the way. Can we take that? Or you want to do a certain kind of business with certain resources but we think those might be harmful in other ways. So we’re going to limit that or restrict it in certain ways. Like those seem much more innocuous or at least less sci‐fi horrific or …
Trevor Burrus: At least not the kind of examples where your personality is defined by whether or not you can build a pool in your backyard. Some of these situations we’re talking about like can you build a shed in your backyard. I mean we say property rights are defining in some basic sense. But is that what we’re really talking about in sort of these cases in your book?
Christina Sandefur: Well, yeah, and, you know, I think it is important to keep things in perspective of course because the types of property rights violations that we’re talking about here in America are not as egregious as they are in other countries that have really no conception of private property rights.
But I also think that it’s – these marginal cases as you call it are very important. Part of the reason is because you have a lack of transparency. When everybody at least pays lip service in the United States to private property rights and to freedom and you won’t find anybody besides perhaps Bernie Sanders that will actually come out and admit that they don’t believe in private property. Then you’re in a situation where it’s easy on those marginal cases for the government to come in and slowly erode away at people’s property rights.
So in the book we talk a lot about the differences between eminent domain when the government comes in and physically takes your property away from you, which is a very visceral thing and it’s something that you’re paid for because you’re kicked off your land and regulatory takings which when the government comes in and through regulation takes away your right to use your property, your right to build on your property. Like you say, if you were to build a shed. Your right to sell your property and you may say that that’s a marginal case because you’re still able to live on your land but I would argue that in some cases, that’s actually more insidious because you have a situation where the government regulates away your property value but still leaves you with the title.
In that type of situation, you’re unable to use your property for the purposes of – for what you purchased it. But you’re still stuck with paying the mortgage. You’re still stuck with paying the taxes. You’re still liable if somebody gets hurts on your property and yet you might not be able to sell the property because now the value has diminished. So those types of things are still incredibly important and they happen below the radar.
Trevor Burrus: How did the founding fathers view property rights?
Timothy Sandefur: Oh, the founding fathers came from a perspective of classical liberalism that saw private property rights as the fundamental right and I remember there were some letters that Jefferson and John Adams exchanged in their retirement about reading – they had been reading Plato or Jefferson had been reading Plato and he despised Plato. Adams also despised Plato and he writes to Jefferson that nothing could be more – better calculated to turn human beings into beasts than the community of property that Plato suggests and in fact history has proven him right on that score.
So the founding fathers saw private property as a key to individual freedom and liberation. Now a lot of the time, people on the other side will criticize the founding fathers. Oh, they were just wealthy exploiters of the downtrodden and in many cases literal slave owners and so their desire to protect private property rights is really self‐interested. I suppose it was in that sense self‐interested but that doesn’t mean that they were wrong when they said that an individual’s right to own himself also includes the right to acquire, use and possess private property and that that is the only real security for individual freedom.
Trevor Burrus: But even the use of the word was a little different too because Jefferson’s first draft of the declaration said life, liberty and – or Locke’s list of life, liberty and property but he changed it to life, liberty and pursuit of happiness. Are those two different concepts as far as it goes for the founding fathers? The pursuit of happiness is different than property?
Christina Sandefur: I wouldn’t say that they’re different. In fact, I think this goes to the point that we’ve been making that it’s necessary to have – to own things and have self‐ownership in order to be able to pursue happiness and again, it’s not a right to happiness. It’s not a right to an outcome. It’s the right of the pursuit and in order to be able to pursue happiness, you have to be able to be free and in order to be able to be truly free, one has to own one’s self and by extension be able to own property.
Timothy Sandefur: Now the phrase “pursuit of happiness” in the declaration, I think you’re remembering the incident in which Jefferson was – according to some historians, Franklin corrected his language to use – to add the words “self‐evident”.
But in his original drafts – and pursuit of happiness did appear in Jefferson’s original draft and that’s because he got it from George Mason’s wording in the Virginia Declaration of Rights only a month earlier and Mason’s wording I actually kind of prefer where he said that all people have the right to acquire, posses, and obtain private property and pursue and obtain happiness and safety. He puts those two things together. Acquiring, possessing and using private property is a way of obtaining happiness and safety.
The phrase “pursuit of happiness” probably originates with John Locke in his inquiry on human understanding as being the goal we all aim at. It’s a nice summation of the goal we all aim at in our lives.
Trevor Burrus: Those who try and defend property rights, it seems – is this really just – I mean the people who have property are generally rich. Is this just a way of trying to defend wealthy people, the privileges and prerogatives of wealthy people by defending property rights?
Timothy Sandefur: You caught me.
Trevor Burrus: I knew it. I knew you were evil the whole time. I knew it.
Timothy Sandefur: Of course the answer to that is exactly the reverse. In every society where government controls people’s lives in totalitarian societies, in communist dictatorships and so forth, the wealthy and powerful, they have plenty of protection because they have political connections and so their properties aren’t going to be taken from them.
It’s those of us who don’t have that kind of political influence who need strong protection for private property rights the most. So Kelo is the perfect example of that. You don’t see rich, white folks having their homes taken away to build shopping centers. It’s people who have less political influence and are unable to persuade elected officials to respect their constitutional rights. That’s why we have a constitution. We wouldn’t need a constitution if we were all in office because then we would all know that the offices will be well‐managed from our perspective. The reason that we have a constitution is to protect us when we don’t have political power and influence.
Christina Sandefur: And yeah, that’s exactly what has happened today is that people have to resort to going to their legislators to get them to protect their property rights when the courts ought to be doing it and the burdens of proof in court are totally reverse so that you have a property owner who has to go into court and has to prove that he should be able to own his property, which should be the default presumption. The government doesn’t have to go and then prove that it has the power to take away your property and often the courts expect private property owners to prove a negative. It’s almost an impossible presumption and that is compounded as Tim said when you’re talking about people who are of very little means. They can’t afford to make the way through the permitting process. They can’t afford to hire an attorney and litigate a case for 2, 5, 10 years and so they’re the ones that are at most risk when you have courts that aren’t protecting property rights.
Aaron Ross Powell: In chapter one, you opened with a story of – it’s Frank – is it Bugryn? Is that’s how it’s …
Timothy Sandefur: Bugryn I think.
Aaron Ross Powell: Bugryn and his house and Christmas tree farm which I think is a – it’s a powerful story. It’s a really distressing story but also gives a sense of exactly what this looks like when the government decides it wants something that belongs to someone who doesn’t have the means to fight it. So could you tell us the story of …
Timothy Sandefur: Well, the Bugryn family live in Connecticut and this was about a year before the Kelo case. So they owned a Christmas tree farm that had been in the family for several – for many years and the city decided, well, what we want is we want this spot, this gateway area into our town to attract commerce. So we’re going to condemn this property and build this private commercial enterprise in this place.
They were going to take the Bugryn family’s property, specifically to give it to a company called Yard Metals and the Bugryns tried to resist this and at the last – you know, the city while the case was going on, city leaders were denouncing them, ridiculing them, criticizing them and calling them selfish because they wanted to keep what belongs to them. It’s always amazing to me when people are selfish when they want to keep their own property but somehow not selfish when they want to use government to steal property from other people.
Anyway, the local newspaper called them all sorts of names and things and they appealed to the Connecticut Supreme Court and they ultimately lost and again, it was right after that the Kelo case also in Connecticut happened and that was the case that reached the Supreme Court. So it’s nice that you point that out after the last question because there are hundreds and hundreds of Kelo cases every year and nobody ever hears about them because those never make it to the Supreme Court and the reason they don’t make it to the Supreme Court for the most part is because these people typically can’t afford lawyers and the kind of legal representation that fortunately the Kelos has got through the Institute for Justice and through private – sorry, public interest law firms that were – are able to represent people for free in certain leading cases. But for the most part, victims of eminent domain are unheard. You never hear about them.
Trevor Burrus: When you think about things like – you explained this, blight for example, which seems the proper way. I’ve never done the study but I would say it has a disproportionate effect on lower income people as a general rule. How does a blight kind of system work?
Christina Sandefur: Yeah, that’s a great one because even though – since the Kelo case, there have been lots of reforms. Almost every single state has passed some sort of eminent domain reform. What are lacking from a lot of those reforms are blight reforms. So blight is this word that government gives when they want to condemn your house because it’s somehow undesirable and take it away from you and blight depending on the state definition can be really anything that the government wants it to be.
Some states allow government to condemn property that is near blight. So when we think about blight, sort of the vision you get in your mind is OK, this is something that is uninhabitable. This is something that is a safety hazard, perhaps an eyesore.
Now we’re getting kind of away from the traditional definition of blight. But how about a house that is beautifully restored that sits on a small lot? It has grass that’s always cut and fresh flowers in the front and mom and dad live there with their 2.5 kids. That’s not the type of property that you think of as blight. That sounds like the American dream but yet in Ohio for example, the government can come in and condemn that property and take it away from that family and call it blighted because it happens to be half a mile away from another home that is falling down. The government will declare that area a blighted area and they can just wipe out the entire area.
Timothy Sandefur: Yeah, blight designations don’t have to be parcel by parcel. It can be the whole neighborhood.
Christina Sandefur: Right.
Aaron Ross Powell: What’s striking about these stories and about how this plays out is – I mean on the one hand just that it’s so common and that people – you expect that especially at local government level. Government can get away with all sorts of things that people don’t notice because there’s just not that many people covering it and it doesn’t tend to make the national news. But what’s shocking is not just that it doesn’t get covered but in so many of these cases, the public seems – when they do find out about it, to either simply not care or to be actively hostile to the property owner.
This is one of these issues that we run into as libertarians a lot I think when trying to promote economic liberty is it just feels like people don’t think it’s as important as say civil liberties or they don’t feel like it gets abused the way that – so like when you – the government taking a large portion of your money through regulation or taxes. People don’t really treat that as a harm to them in the way that they would think of being …
Trevor Burrus: Prohibiting gay marriage.
Aaron Ross Powell: Or prohibiting gay marriage when it can have just as much of an effect on your ability to lead the kind of life that you want to lead and to really flourish. Why is that? Why does economic liberty kind of slip under the radar?
Timothy Sandefur: You know, I think – so there are two things. First, I think if there were a law in the books and there have been such laws many times in the past that said two men can’t own property together, the way that there have been laws for instance in California – the Alien Land Act that prohibited Chinese people from owning any real property in the state until relatively recently until the 1950s.
If laws like those in the book – were on the books, you would see the same kind of outrage I think that you saw about same sex marriage. So I’m not quite that pessimistic but I will give one pessimistic answer and that is – there’s a great passage in Democracy in America when Tocqueville says that in America, the people have really absolute power. They really could do all sorts of horrible things. He says, “But there are things that they don’t even dare.”
It’s a great line because he’s talking about the influence of social and political morays on society and he says, well, although they have this power, for various reasons, particularly religion, the American people don’t dare to think about exercising all the power that they have. I think what we’re seeing is throughout the 20th century, we’re daring more and more and more until you come to a situation where – at least our political and legal elites think that government can redistribute property however government wants to and in fact our philosophy elites think that your skills, your knowledge are really social things that government can redistribute, even your skills and abilities to serve what the political elites think is necessary. That’s shocking.
Christina Sandefur: Well, and another thing is that property is limited. We have limited resources and you have to determine how that’s going to be divided. So every benefit has to come along with a cost and a lot of times people think about benefits. They say, well, we would prefer this local mom‐and‐pop store because we know the owners and so we don’t want Walmart to come move in and take over that. But they don’t think about the costs to the community. So you think about Walmart putting those people out of business but you don’t think about all of the people that Walmart is able to employ when it comes in to town and the lower prices that Walmart is able to offer. So that people are able to buy more goods, that kind of thing.
It doesn’t mean at the end of the day that the decision is necessarily in favor of Walmart but it’s a cost benefit analysis that market systems allow individuals to make and then come to decisions. When the government comes in and regulates away your property rights in favor of community desires using the democratic system, those costs are not transparent.
So the costs fall on the property owners themselves rather than those costs being materialized in the sense that the government is going to pay you for them. So all the taxpayers, the entire community has to contribute and so it’s a problem. It’s not effective demand as we would call in economic terms because you’re not thinking in terms of what it’s actually going to cost you. You just think, hey, it would be nice if society were like this.
Timothy Sandefur: It’s not a new issue. Aristotle says that in the politics, that he’s commenting on Plato’s community of property in the Republic and he says there are people who – imagine that if you abolished property, all of a sudden everybody would be everybody’s friend. It’s one of the few moments of sarcasm in Aristotle. So this isn’t a new issue at all.
Aaron Ross Powell: I struck by – just a few days ago, I was reading something about Walmart is closing 100 plus stores nationwide, many of them in small towns, and these small towns are freaking out that they’re now going to lose their Walmart instead of saying, “Oh boy, this means we get to have lots of main street mom‐and‐pop shops come back.”
Timothy Sandefur: That’s right.
Trevor Burrus: Yeah, it’s kind of this whole destruction made me think about the universal declaration of human rights under the UN, the kind of thing that if you met someone like George Clooney’s wife – isn’t she a human rights lawyer?
Christina Sandefur: Yeah.
Trevor Burrus: If someone introduced you to …
Christina Sandefur: And also the luckiest woman in the world.
Trevor Burrus: So if you meet someone at a cocktail party, let’s say a human rights lawyer, they’re probably not fighting for property rights in the Third World or anywhere and property rights are not on that list of UN – I don’t think so. I’m not sure. I haven’t read it in a while but I do not think that they’re on the UN declaration of …
Timothy Sandefur: Well, this is something that I have targeted. I try – the two of us both try very hard to use the phrase “human rights” when talking about private property because private property is a fundamental human right and every human being understands it. Everybody understands it. In fact, as we point out in the book, parents have to teach their kids to share, not to own.
Kids learn how to own on their own. Private property is a basic point of what it means to be human. It is every bit as much expressive as freedom of speech. It’s every bit as much protective as the right to possess firearms. It is an essential part of all human liberty. So yes, it is a universal human right. The rhetoric of human rights was devised originally by the new deal generation seeking to exclude private property rights but they’re wrong about that.
Christina Sandefur: Even George Clooney’s wife understands the importance of private property as a means of self‐expression because every single day, I see her in Glamour Magazine or on some – you know, on some website and what is she wearing? Look at her shoes and look at her dress and the way that she does her hair and all of those things of course. She’s able to express that particular part of herself by owning private property.
Trevor Burrus: Do you think that maybe one reason for that exclusion or that you have this left‐right divide – I mean as I said at the event earlier today – someone says they’re a property rights lawyer, you probably know that they’re on the right. I mean is it because property rights rightfully enforced, rightfully conceived, make it harder for the government to do things and therefore people who want bigger government just don’t like it?
Timothy Sandefur: I think that’s absolutely what it is. But I also think you run into the complication that in America, the term “liberal” and the term “conservative” means something different than they mean historically or in terms of world politics. That property rights tend to resist radical efforts to redesign society and so in that sense you could say they’re – technically they’re conservative. So there is a tendency in that regard I think to picture them as more – property rights as a conservative idea.
Christina Sandefur: But you’re right to say that big government politicians tend to not like property rights. I mean Donald Trump considers himself a conservative or a republican but of course there’s a very famous Institute for Justice case where Donald Trump tried to take – to condemn and take away a grandmother’s property in order to knock down her house and put up a parking structure for his limousines in Atlantic City. So again when private property gets in the way of big government in something that a rich crony wants to do, then it’s not desirable anymore.
Timothy Sandefur: And that example shows that property rights are really – is a liberal in that sense. In fact it’s very liberating and as I said before, it’s the poor who need protection, legal protections for property rights more than the rich. So in that sense, it’s really kind of left wing.
Aaron Ross Powell: OK. So we can – I mean most people would admit that there are – when the government can intervene in property rights, there can be abuses and they can often be abuses on – to benefit the rich like the Trumps trying to take the woman’s house. But at the same time as you mentioned, like we have to teach kids – kids immediately have a sense of mind and then you have to teach them to share.
So maybe getting rid of this notion of like what’s mine is mine is part of maturing and growing up and we need – I mean to go back to Aristotle, his idea of our political system would be ruling and being ruled in turn that like as you become more virtuous, you are in government and part of government’s role is to teach us to be virtuous.
So maybe what we need is – even if we don’t like it and even if it’s hard, we need the state to step in and say look, this – you know, demanding of what’s yours is yours is not the right thing and we need to share more.
Christina Sandefur: But again that assumes that government is a disinterested party and it’s just not. That assumes that government officials can somehow turn off their selfishness or their human beingness when they come into the situation and they’re just going to make some fair and impartial determination and of course what does it even mean to be fair and impartial in a situation like that.
If I’ve worked hard and I’ve earned property, then isn’t it fair to allow me to keep it? But it’s – that’s just not reality. This situation is that government officials are people just like anyone else and the difference is that they have the power to be able to make decisions in ways that they see fit.
Timothy Sandefur: Plus I’m skeptical of the idea of sharing as a virtue to begin with. There’s that – that episode of Family Ties with Michael J. Fox’s character who sends his little brother off to his first day in kindergarten with a big piece of tape on his chest that says, “I do not share.”
I suspect that would be me. The reason why sharing is a virtue among siblings is because their property is given to them by their parents. They didn’t create that property. So they have no claim of that sort to the property. So then the parent can say, “No, you have to share.” But when it comes to other kinds of property for adults, when it comes to justly acquired property among adults, it is a violation of my rights to compel me to share with somebody and I don’t see any virtue in it.
Christina Sandefur: Property rights I think encourages human beings to share in a way that we would find valuable and good. So that’s the term the sharing economy. It has been used to apply to groups like Airbnb and VRBO that allow people to rent out their property to people who are vacationing or visiting a town instead of having to go to a big hotel chain or Uber, a lift, allow people to give rides to people who are needing rides instead of having to go through an established taxi industry.
So that type of sharing – of course it’s based entirely on the respect for private property rights and there we have people that are meeting each other and then are interacting. I mean when you think about – whenever you take an Uber, the interesting conversations that you have with the driver, we’re allowing that type of sharing. That market‐based sharing, that respects private property rights is allowing people to connect and to value each other more so than any type of government interventionist system.
Timothy Sandefur: That’s a very good point, as opposed to the kind of sharing where you are as the philosopher Anthony de Jasay says “slicing up the cake that nobody baked” where we have this idea that wealth is just some sort of social institution. It just sort of fell from heaven and that our job as appliers of justice, that our job is to apportion these rights in some sort of fair formula when really the question is, “Did you justly acquire it and therefore does it belong to you?”
Aaron Ross Powell: Are the two of you then property rights absolutists? Is there a limit to this? So eminent domain is often abused and certainly can be abused. So should we get rid of that power of government entirely?
Christina Sandefur: Well, I would like to see that power scaled back probably more so than the constitution even provides for. But it depends what you mean by property rights absolutists because in the term “property rights” is the word “right”.
So if I have a right to do something, then it’s rightly mine but there are a lot of instances where people say, “Well guys, if you believe absolutely in property rights, then you believe in someone’s right to use their property to harm someone else.” You believe in some – you know, someone’s right to pollute or someone’s right to do something that would hurt their neighbors.
Trevor Burrus: Shoot someone that comes on their land.
Christina Sandefur: Yeah. But the thing is when you have – those are uses of your property that you don’t have a right to in the first place. If you’re using your property to harm somebody else, then that’s not really a property right. That’s a property abuse. So is that a limit to property rights or is that just outside of the realm of property rights entirely?
Timothy Sandefur: Yeah, I think there’s an element of absolutism in the concept of right but I also would say – no, I’m comfortable with a very limited conception of eminent domain in principle, subject to all sorts of limits because of how badly abusive it can be, because there are certain very marginal cases but they do occur where a person is inflicting harm on other people simply by standing in the way with this property.
Now the reason that’s so dangerous an idea is because it bottomed all property rights or the right to hold out. But that’s why the compromise that we reach is well, the government can take property under certain limited circumstances so long as it justly compensates that person.
The analogy that I use is to – there’s a principle in tort law that in an emergency, you can damage somebody’s property as long as you make them whole afterwards. So if you’re lost in a forest in a snowstorm and you come across a cabin, you can break into the cabin and shelter there during the snowstorm so long as you then compensate the owner for that because it’s an emergency. In those kinds of circumstances, I think it’s legitimate. But I agree that it’s a tough question.
Trevor Burrus: If all the world is currently owned essentially, all the land of the world in some sense is basically owned or at least anywhere anyone wants to be, and therefore we have this distribution of land ownership that is exclusionary to a lot of people who weren’t there for the first land rush for example. They weren’t at the – you know, Sooners, like Oklahoma Sooners are going out and getting …
Timothy Sandefur: Hawaii would be a very good example of this.
Trevor Burrus: And so you have this distribution of property that is itself resulting from unequal – it’s unequal in some sense and it has resulted from historical accidents and also some historical wrongs to some extent and we take that as a given. Is that fundamentally a problem with treating property rights too seriously, that we treat the initial distribution as somehow just and that we think it should be somehow preserved or at least not radically disturbed.
Timothy Sandefur: I think I would say that we don’t take the initial distribution as somehow just but we do take it for granted and then the question is, “What’s the best way of dealing with that historical fact, that this land has been acquired and now is owned by these people and so forth?”
Take the land situation in Hawaii. Is the best solution for the government to confiscate all the land and distribute it to its chosen favorites or is the best solution to say OK, it’s up to people bargaining amongst themselves to decide how much property is worth, to exchange for it and so forth in hopes that the injustices will gradually wash out?
That last I know sounds unsatisfying to the mind that wants a clean slate and fix everything now. But actually that’s really what we do to everything in the world is to hope that the injustices will gradually wash out if we justly – if we treat things justly from here on forward.
So as a result, you find cases where land is often protected in Hawaii by private agreement because people say, well, this is a beautiful spot and we shouldn’t develop it. So they mutually bargain for a trust arrangement or something like that.
I think that’s the best of the bad possible answers. There’s no perfect solution to it but I do know that for the government to confiscate a land and distribute it to its chosen favorites is by far a worse solution. Then what you have is injustice being inflicted on innocent people all over again and you have the rent‐seeking problem that the people of the government likes better. You’re going to get more land and you have the knowledge problem that government doesn’t know who should and should not get land. It couldn’t possibly know the answer to that question and yet it’s going to arrogate to itself that oh, I the government somehow know who should have land.
None of those things are any better than the market solution. So the market solution is the least bad option in the situation.
Christina Sandefur: And to some extent, I mean any initial distribution of resources is going to be unfair but that doesn’t necessarily mean that it’s government’s job to come in and do something about it. So if I happen to be born into a family that is – has a lot of means and is very wealthy or if – that’s unfair I guess to the person who is born into a very poor family that doesn’t have the same kinds of means. But it’s not really my fault that somebody is born into a different situation and then it’s the government’s job to come in and take away what it is that I was born into and give it away to somebody else. As Tim said, that’s a far worse situation.
Timothy Sandefur: And I think a lot of modern justice talk sort of takes as a given the idea that property ownership depends on earning it. Rawls for instance, he makes this argument very strongly and we as libertarians, we often tend to just habitually respond to that. Well, no, if I earned it, I own it and so forth.
We all agree on that but property that you haven’t earned also is justly yours if you justly acquired it and the most obvious example of that is my body. I didn’t earn my body. I basically found myself here through no fault of my own. But I didn’t hurt anybody except I guess my mother being born and that was voluntary.
So in that sense, I’ve harmed nobody to acquire my physical attributes and therefore they belong to me in the absence of any evidence that somebody else has a superior right to it. It’s sort of a finders keepers kind of answer.
Christina Sandefur: The same is true of inheritance.
Timothy Sandefur: Right, my body is inherited. Yeah.
Aaron Ross Powell: Does land play maybe an outsized role in arguments against libertarian conceptions of property rights? Because it always seems like when people are arguing against private property more at the philosophical level not like just in everyday politics, it always starts with you shouldn’t – you don’t have a right to own land because it’s really – like it’s not your right to own it. You’re excluding other people.
So you’re violating their right to traverse this common resource or the question like Trevor asked about the zero sumness of land because outside of a few minor examples, we’re not creating more of it. It always seems like the knocked‐down argument that gets presented is this thing about land ownership and that the reason that people are poor is because of land ownership, which may have been true back when the Georgists were writing and we were an agrarian society. But does land even really – I mean there are the examples of taking the person’s house that has huge – both sentimental and personal and financial value.
But in general, it doesn’t seem like land matters a huge amount anymore in a modern economy to the way that people get wealthy. I feel pretty comfortable. Until only very recently didn’t own any land. So we – are they – does land get in the way of having fruitful discussions about property rights because we think it’s more important than it really is?
Timothy Sandefur: I think that’s a fantastic question. I do think that land tends to be overemphasized in discussions and the reason – well, perhaps I shouldn’t say the reason why but I think the consequence of that is that we tend to be biased in favor of assuming that property is not being created. The reason why land is a more complicated matter sometimes particularly in cases like Hawaii – well, I guess land is being created in Hawaii, come to think of it.
Christina Sandefur: More so than in any other state. Yeah. But a square mile is being added to the big island every single year, so there you go.
Timothy Sandefur: But other than that, land isn’t being – new land isn’t being created except in the form of skyscrapers. So it sort of biases our discussion. When we’re talking about wealth creation, which is the phenomenon of the healthy sharing system Christina was talking about, then the market argument is obviously stronger. In the land argument, I think the answer has to be yeah, there is a certain element of unfairness about finders keepers or about I was here first or whatever.
But that’s not an injustice. Nobody was harmed by the fact that I happened to inherit this land from grandpa or something like that. So I do justly own it and I have the right to make the decision on whether to sell it or not and in the long run, I think that the injustices do wash out if you have a market society. There is no alternative to that – to the answer that does any better. The alternatives of confiscation and redistribution have so many – it has so many downsides. They are vastly outweighed by the least bad option being the market economy.
Christina Sandefur: And if land ownership and home ownership are given some undue exploitation in these discussions or something, I mean really the government is partially to blame for it because the government – the federal government and state governments subsidize agricultural land ownership. They subsidize home ownership and have recognized that this is a value and it’s a value that everybody ought to partake in and so I think they’ve just exacerbated them.
Timothy Sandefur: And create artificial scarcity by holding a lot of land especially in the Western states in the government’s hands and it refuses to give that up.
Christina Sandefur: Or rent‐controlled land in the Eastern states.
Timothy Sandefur: Right.
Trevor Burrus: If you two are both practicing – well, you do more litigation now. Christina does I think or used to litigating …
Christina Sandefur: I’m still litigating.
Trevor Burrus: So you’re both litigating and so you’re kind of fighting a lot of these cases. What kinds of things are happening to property rights in America today? What kind of issues are we dealing with landowners or people who don’t own land, other property rights, find that the government is doing to them?
Christina Sandefur: Yeah. Well, again this – the regulatory takings area of laws is a good example of this because pretty much – I mean most states with the exception of Arizona, a little bit Florida, don’t recognize property rights against regulatory takings unless the government comes in and literally eviscerates your property value, takes away …
Trevor Burrus: So this would be a regulation like – it would say we want to save – give me an example of a regulation that would eviscerate a property.
Christina Sandefur: I mean if you have an empty lot, a piece of land that is pretty much valueless unless you’re able to build something on it and the government says you can’t build anything on it anymore, you got to leave it completely.
Trevor Burrus: Because of environmental concerns.
Christina Sandefur: You know, a bird or something like that. Then yeah, I mean that might be – that might rise to the level and it might rise to the level of a total taking in which case the government might as well have taken the title to your land and then you can recover. But otherwise, when the government regulates your property rights out of existence or regulates some of your property rights out of existence, most of the time in state and federal courts, you can’t recover from that. You can’t be paid for that like you could in an eminent domain taking.
A good example of that is something that occurred recently in the town of Jerome, Arizona. So Jerome, Arizona is a small little mining town that’s built up in the side of a mountain. It’s known as America’s most vertical city because it has very steep streets and it’s a mile high up on the side of the mountain. It used to be a mining town and at one time had thousands of people living in it. But when the mine shut down in the 1950s, half the people fled and the town has sustained itself by turning it into a tourist attraction renting out homes, having bed‐and‐breakfasts, having eclectic little shops and places to eat.
A man from Phoenix, one of my clients actually, his name is Glenn Odegard and he had long admired Jerome and wanted to be able to go up on weekends and really dreamed of having a place in Jerome that he could call home. So when he went to Jerome, he found a property that he could afford which was a home that had been laid vacant for 60 years, almost since the mine shut down. It was covered in 10 feet of mud and rocks and was not habitable and actually was a public health hazard.
He saw an opportunity. He was an entrepreneur and said if I take this property and I restore it to its original historic condition, then I can recuperate my cost by renting it out to people who want to come up and visit Jerome and then I will be able to have a place that I can visit on the weekends. So he got the permits for that. In fact, he did such a good job that he earned a spot on the cover of Arizona Highways magazine and the government of Jerome itself put his house on the historic Jerome walking tour.
Then suddenly the government, the town changed the rules in the middle of the game and decided that actually, you can’t rent out your property short term, so for under 30 days as a vacation rental, and Glenn was out of luck. Of course this was the purpose for which he bought his property. He was told he couldn’t use it that way now. In a typical situation, if Glenn went to court and argued that he should be compensated for that regulatory taking, the court would say well, that property is still full of lots of value. I mean maybe you can sell it for the same price because your rights have been taken away, but you can still rent it long term and you can still live in it yourself.
So even though that’s not what Glenn wanted to do with his property, he would be told that he’s out of luck. Fortunately in Arizona, that isn’t the case because Arizona is a state that has passed a strong protection for property rights. The Property Ownership Fairness Act which says that courts have to compensate you for regulatory takings along with eminent domain takings but in the other 49 states, Glenn would have been out of luck.
Trevor Burrus: Now you got a case – it wasn’t your case Tim at PLF but the Sackett case was …
Timothy Sandefur: Yeah, that was a …
Trevor Burrus: Yeah, but that wasn’t your personal case, but that’s another example of the kind of thing that’s happening with property rights in terms of what you can do to even challenge some of these determinations. Can you tell us a …
Timothy Sandefur: Oh, yeah, the procedural restrictions on property owner’s challenging takings of their property are just really absurd. One of them being the Williamson County trap we call it named after a case called Williamson County versus something or other, which was a case where – what the Supreme Court has said is that if you’re going to challenge a taking of your land by a state government through a regulatory taking as opposed to eminent domain, you first have to go through the state courts to seek just compensation and be denied. Then you can go to federal court. The problem with that is that there’s another rule that says that once you’ve lost in the state court, you can’t go to federal court with the same claim.
So what happens is you get stuck in this trap. You go to federal court and you’re told you have to go to state court. So you go to state court and once you’re complete there, you’re not allowed to go to federal court.
So it blocks you out of challenging the taking. Another problem that the Supreme Court will be taking up this term in another Pacific Legal Foundation case actually is the case involving what’s called the “relevant parcel problem”. This gets a little bit complicated but it’s extremely important. What happens is if the government passes a rule that prohibits you from using say 10 percent of your land, is that a complete wipeout of the value of that 10 percent or is it only a 10 percent wipeout of the whole?
Trevor Burrus: Of the whole thing, yeah.
Timothy Sandefur: And that matters because as we mentioned, the court says you’re only entitled to compensation for complete wipeouts. So if you imagine it as a complete taking of 10 percent of your land, then you’re entitled to compensation. But if you imagine it as only a 10 percent taking of all of your land, then you’re entitled to zero compensation, right?
So that’s the question going to the Supreme Court. In that case, the property owners in Wisconsin were denied the permit to develop their land. But the courts that they were entitled to no compensation even though it was a complete wipeout because they owned a property next to it, which they could use. So if you consider the two together, well then it’s only a partial diminution in your value and therefore you’re entitled to no compensation.
Fortunately, the Property Ownership Fairness Act that we’ve developed at Goldwater Institute cures that problem by saying that if it diminishes the fair market value of your property, you are entitled to compensation for that diminution in value.
Aaron Ross Powell: It seems totally bizarre.
Timothy Sandefur: Truly.
Aaron Ross Powell: I mean that’s like saying like it’s not – your car wasn’t stolen because you owned two of them.
Timothy Sandefur: Yeah, that’s right, yeah, or you’re entitled to no compensation for the taking of your car because we left you the tire, which you can put on your other car. So really we did you a favor.
Trevor Burrus: So I was – evading my question but you’re not a Sackett – what was the issue in …
Timothy Sandefur: Yeah, in Sackett, the case involves …
Trevor Burrus: You’re totally trying to get off of that question. Yeah.
Timothy Sandefur: I’m running for office.
Trevor Burrus: Yeah, exactly.
Timothy Sandefur: In Sackett, the question was federal jurisdiction and what happens is under the Clean Water Act – the clean water is very simple. It prohibits the discharge of a pollutant from a point source into a water of the United States. So the trivia question is, “What is a pollutant?” Anybody? It’s whatever the government says it is, right? What is a water of the United States? Anybody? It’s whatever the government says it is.
Christina Sandefur: Everything.
Timothy Sandefur: Including dry land, which is classified as a wetland under federal regulations that are basically vague. So in the Sackett case, the Sackett family in Idaho wanted to build a house and they got this order from the federal environmental bureaucrats saying your perfectly dry land is a wetland and you have to therefore remove what you’ve built and put a foundation down in preparation of building their house.
You have to remove that foundation, restore the property to its original position. In fact it had been – the order even said what plants they had to plant on their property and where and you had to let government officials on your land to inspect, to make sure you’re following the rules. If you don’t, you’re liable for financial penalties of something like $75,000 a day. I say something like because we never did find out exactly how much it was. But it was probably on the order of $75,000 a day.
The Sacketts said, “Well, don’t we at least get a hearing to save – where we can argue that our property isn’t a wetland?” and the federal court said no.
So that case went to the Supreme Court and the Supreme Court said yes, they’re entitled at least to a hearing. Now that’s a great victory. It was nine to zero but it is only a day in court. That’s all that is.
Now the Supreme Court has granted cert in another case that it will hear this term, another Pacific Legal Foundation case on the question of jurisdictional determinations when the EPA says we have determined we have jurisdiction of your property. Are you allowed to appeal that and have a court hearing about that? That case is going to the Supreme Court.
Trevor Burrus: Do you know what happened to the Sacketts on remand?
Timothy Sandefur: The last I heard, the case has gone back to the trial – the court and they’ve been kind of bargaining over how to have that hearing. The hearing so far as I know has not taken place yet.
Trevor Burrus: So do you think that …
Timothy Sandefur: Years afterwards.
Trevor Burrus: Of course, yeas after. Do you think that in general looking in the future, that things are going to get better or worse for property rights? I mean as government expands, it’s probably going to get worse but maybe we have a little bit more tools in our arsenal to fight these things.
Timothy Sandefur: You go ahead. I will think about what I …
Christina Sandefur: Well, I work for – well, we both work for an organization that uses federalism to fight government overreach and so I think there’s a reason to be optimistic because we’ve seen time and time again that the states have stepped in and have corrected some of these injustices and actually probably one of the best things that – to come out of the Obama administration is that some of these violations have been so egregious that people are now learning that their property is not protected and they’re trying to do something about it.
That’s true of the environmental regulations or otherwise. So states are trying to fight back. So most of these property rights violations actually do occur on the state level and so the states are in a good position to be able to do something about it.
So things like the Property Ownership Fairness Act which honestly I mean before the Kelo case, it probably would have been inconceivable to think that a state would pass something like that, that it would pass a law that would say that you’re entitled to just compensation if the government takes away your right to use your land, that you can file a claim with having to hire a lawyer and go to court, that when you do – if you do have to go to court, the government bears the burden of proving that it was taking away your property rights in order to help health and safety.
If you lose the case, you don’t have to pay the government’s court costs and attorney’s fees. Those are all things that are – that again would have been inconceivable 10 years ago but in fact Arizona passed such a law. That law has been wildly successful and the reason that it has been successful, regulators were afraid that well, if we pass this, it will make the cost of regulation too high and we can never pass another regulation again.
Of course that sounds good to me. But what it has really done is not that – it hasn’t bankrupted the public treasury. What it has done is it has required regulators to think about the costs of their actions in a way that they’ve never had to do so before.
So if we want to impose a historic preservation ordinance that says that you can’t paint your house pink, OK, that’s fine. Maybe that’s what the community wants. But then the community had to pay for that. If I bought my house and I bought it because I wanted to paint it pink like Suzette Kelo’s house, and that right was taken away from me, I shouldn’t be the one to have to bear that cost. The community should bear it as a whole.
So I think making those costs more transparent, making the cost of regulation more transparent and requiring regulators to think about these things is having a positive effect and I think the fact that groups like Pacific Legal Foundation, Institute for Justice, the Goldwater Institute are taking on these cases where – even the case that we don’t win in court, we’re telling important stories and we’re winning in the court of public opinions.
So I think there’s reason to be optimistic. There’s a lot of work to be done but I think there’s reason to be optimistic.
Timothy Sandefur: I guess I agree in a broader sense that – because I think what I’m seeing is an increasing suspicion of the administrative state and I have the gall to hope that that’s also true on the left as well as on the conservative side. But I think people are becoming aware of the danger of administrative agencies, these unelected officials that we have no effective democratic control over, who really write most of the laws under which we live our lives and are responsible for things like the Sackett case.
That was a nine to zero decision because even the left sees there’s a problem with these unaccountable administrative agencies making these decisions. Professor Philip Hamburger published his book on the – is the administrative state unlawful? And I think you’re seeing a lot of judges express skepticism toward the administrative agencies. On that note, there is another Goldwater Institute proposal that I think promises some hope and that is our Right to Earn a Living Act that we’ve proposed.
This is legislation that among other things requires the administrative agencies in the state to review the regulations, to see whether they effectively protect the public’s health and safety or whether they unduly burden economic freedom. If they do the latter, they need to eliminate the regulations and if they fail to do so, taxpayers have the right to challenge those regulations in court.
That parallels very well what our new governor Doug Ducey in Arizona said in his state address, which is the need for accountability and for reasonableness among these regulations. I mean it is totally unreasonable that federal officials in an office building in Washington DC are making decisions like whether local communities can have dog leash ordinances or not.
I mean I’m not making that up. There’s a case that went on where the EPA fined local government for not having a leash law because it allowed owners to let their dogs run free on the beaches and the dogs were killing an endangered species.
So the city got charged for that. I mean it’s totally unreasonable. It’s unreasonable that the federal government dictates everything from the thickness of ketchup in fast food packets to the angle at which your office chair can recline and that you have no meaningful control over that official.
So I think there is skepticism both I hope on left and right about the need for reform of the administrative state and that gives me a lot of optimism.