Tuesday, October 09, 2007


The Right to Own and Control Property

Conservatives believe that the right to own and control property is the most important right established in our federal constitution. We know that the constitution was written by men who owned and controlled property. In fact, they were rich men, with large tracts of land devoted to farming. They were not going to set up a government that had the power to take property from them unless it paid them fair value for it. They also were not going to set up a government that was going to place limits on what they could do with the property they owned.

In those days (1787) the fathers of the constitution lived in a land that was mostly empty, as far as they knew. Of course, there were a few people who lived on the land, descendants of the people who live there at the time of Columbus's voyages. They didn't count. They wrote into the constitution that "Indians not taxed" could not be used in the decennial count of humans to determine the number of representatives each State could send to the federal Congress.

I am wandering off my point. I was inspired to compose this essay by a news item in today's paper about a demonstration on the island of Kauai against the continuing development of the island as a tourist attraction. The natives fear that soon the island will be covered with high-rise hotels and condominiums to cater to the tourists. The pristine beauty of the island will be lost forever. The demonstrators made their point by preventing a new ferry from docking on the island. The ferry finally had to turn back to Oahu with its load of passengers.

Anybody who believes in the absolute right of the owner of a parcel of land to do whatever he likes with it will be severely annoyed if not outraged that the demonstrators were able to stop the ferry and, by inference, stop the flow of tourists that make the development projects very lucrative. Land speculators who bought land with borrowed money will lose their investments if the development projects don't go forward. It's terrible that a "mob" is able to cause them such a great loss.

I don't know what our federal courts will decide about such matters. I suspect that, since a majority of the judges were appointed by conservative Republican administrations, the courts will decide in favor of the land owners and land speculators. They will accept the argument that the demonstrators, the protestors, the opponents of development are not themselves going to lose any money if development proceeds. Therefore, they are not harmed by the development and have no basis for suing to prevent it. In fact, any Kauai native who owns a tract of land that is potentially suitable for development is bound to be able to sell it to a developer at a very good price. Instead of protesting and trying to stop the development they should relax and enjoy it.

I think our belief in the absolute right of a property owner is wrong. It is a belief that has outlived its usefulness. As long as homo sapiens was a rare species and there was plenty of vacant unspoiled land for those who wished to live in unspoiled land there was not harm and a great deal of usefulness in the belief of the absolute right of property. What some millionaire did with his estate wouldn't affect me; his estate was far away or, if not, I could easily find another place to live. We homines sapientes are no longer members of a rare species. In fact, we are now the most numerous warm-blooded creatures on the planet. The planet is going to become increasingly crowded with us. If we are going to get along with each other, we will have to give up the concept of the absolute right of a property owner.

In fact, those of us who live in cities already must accept severe limits on what we can do with the bits of real estate we own. On my 12,000 square feet of land I am allowed to have a house, a garage for a car, a swimming pool, and various beneficial plants. I am not allowed to raise pigs. I am not allowed to play a steam calliope that will waken any neighbor within half a mile of me. I am not allowed to grow marijuana or oriental poppies or coca. I do not "own" the minerals that may be discovered in the earth under my lot.

Our federal courts are always behind the times regarding social and economic questions. The judges were appointed by past administrations, most of whom were interested in maintaining laws and other rules that had been in existence during their early lives. Change comes slowly, too slowly for an old geezer like me who doesn't have time to wait for it.

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