Human Rights, Property Rights

by Joel on June 24, 2005

Quite a number of times I have taken conservatives to task for what I view as their favoring property rights over human rights and economic justice. But on a recent significant court case, I wholeheartedly agree with the conservatives and condemn the positions taken by the liberals. In U.S. Supreme Court case of Kelo, five of the liberal and/or less conservative justices outvoted four conservatives to rule that government may take private property, then basically give it to private developers for the purpose of upping property tax revenue. (This is not, however, a strictly party-line matter, as seven of the nine justices were appointed by Republican presidents. Further, many Republican real estate developers are no doubt delighted by the result.)

You can read more about the case, obtain a fuller analysis and get additional links at In the Agora under separate posts written by Jonathan Bunch, Ed Brayton and Zach Wendling (Zach, nice post, but would you leave the strange spelling of words such as “favouring” to Richard?). I will limit my discussion to why liberals should be appalled at the decision and leave the legal arguments to those who understand Constitutional law better than I.

Again, in general I fault the elevation of property rights over human rights. During the U.S. civil rights struggle, many conservatives insisted that it was fine to have “no sale to Negroes” (sic) covenants in deeds or subdivision agreements. Others insisted that property rights are so sacrosanct that no one should be required to rent a motel room or serve a restaurant meal to any minority person. On those issues, now settled to the contrary, I think those conservatives were dead wrong.

I believe in minimum wage laws. I favor Social Security and Medicare that many conservatives consider as nothing less than theft of private property. I favor mandatory un-employment insurance and worker’s comp (though it often needs to be reformed). Frequently, however, property rights and human rights are wedded. I think Kelo should have been one of those cases.

In this “takings” case, I think it is the poor or lower income folks, often including minorities, who will suffer the most. As it is already, a disproportionate percentage of wealth is held by a very few. Private home or land ownership is one of the few possibilities for many of those in the lower income brackets to accumulate some wealth, sometimes simply by living in areas that are prime for development. However, by having their property seized by the government, owners will often get a “fair market value” that is much lower than if they simply held out. For many developers, if they want a piece of property badly enough, they’ll eventually offer a price that most owners won’t refuse. And if they do refuse? That’s the freedom way.

The “takings” clause is an essential part of the U.S. Constitution. Without it, roads couldn’t be built or sewers installed. Without it we most likely would have a very inefficient airline system and almost certainly no railroad lines at all. Public schools couldn’t be built or expanded. However, I’m convinced that the clause was intended to allow the government to take and compensate for property that the government itself would be using, not simply as an indirect way to make its coffers bulge.

By letting developers acquire by eminent domain rather than by market forces, the property owners in effect have much of their investment “stolen.” Their investment can be taken before it has really ripened.

So why do liberals support this? Because they decline to discern. Most of us liberals favor an empowered federal government that has the ability to afford greater opportunities for all. We forget at times that that very same power can also be used to take away opportunities. Powerful government for the sake of powerful government becomes the result, with little thought given to the consequences. We’ve frequently lost sight of helping people and become addicted to power just because it makes us feel important. (Many Republicans who call themselves conservatives also effectively favor big government because they have discovered that handing out money can bring popularity.)

I have a friend who has 40 acres of land, bought 30 years ago for around $500 an acre, or a total of $20,000. He has never been particularly well off, but has always worked hard. Because of recent economic development, including motels and stores going in nearby, he has now been offered more than $650,000 for that same land. However, under the Kelo case, depending on how much land developers wanted, the “taking” market value might very well have been held to as little as $200,000 instead. (Government is already getting more tax money because of the increased assessed value of the undeveloped land.)

I’m really not familiar with eminent domain laws of other nations and I realize this post may not particularly interest you. However, I hope that non-American readers will still find the Supreme Court case as to the underlying principles troublesome to the cause of economic justice for the poor. So in this case, human rights and property rights are bride and groom.

In the same light, I believe that some communities have made starting small businesses too complicated, overly regulated and unneccessarily expensive to operate, also hurting the poor. But that would be another post.

{ 6 comments… read them below or add one }


Joel 06.24.05 at 8:02 pm

Many thanks to the “link fairy” for completing a little work while I slept. That’s nice because I had run out of steam. And I didn’t even put a quarter under my guest blog pillow. Or, will the quarter be deducted from my pay?


Richard 06.24.05 at 9:13 pm

We’ll let you off the quarter this time!
I’d like to comment on this post — it sounds like it raises some important issues — but it’s one of those where I feel very distant from the subject. (That’s not a criticism at all)

But there is an issue I can understand, I think. Does the community, as represented by the government or some other authority, ever have the right to deprive a private citizen of their property? Is that what this is all about? I think there are circumstances in which that should be so, though those powers should be subject to very tight controls. In Britain, for example, there are occasions when a “compulsory purchase order” can be made which obliges the property owner to sell in order to make way for a road or some other development. is this situation comparable?


Joel 06.24.05 at 9:40 pm


In this situation, the land wasn’t taken for use by the government at all. In short, there were often modest homes owned by many ordinary people. Thus, the government couldn’t collect a lot of property tax because the homes were worth relatively less. What the local government wanted was to take the poorer or less well off folks’ homes, have a private developer tear down or move the less expensive housing and then put up luxury housing in its place. The developers would get to make a lot of money, the government would get much higher property taxes and the poorer folks would have to move.

Yes, what you are talking about in “compulsory purchase order” sounds similar to our Constitutional taking provision. Imagine, though such a purchase order being used not to build a road or a school but simply so that private developers could get the property.

Property condemnation (taking, eminent domain, etc.) is a must for civilized society. But it shouldn’t be abused. The Kelo case is an absurd twisting of the “takings” clause.


Richard 06.24.05 at 10:09 pm

Sounds like I agree with you, then. It’s a sad fact that under every political so far tried, the law more often benefits the rich and powerful than the poor.


John 06.27.05 at 10:49 pm

Bravo! I’ve read liberals who didn’t like disapproving of the Kelo decision because it gave them odd political bedfellows. Yes, property rights and human rights are inseparable.

I wonder, though, how much water is being stirred outside of the blogosphere? Will the anger of the American people be sufficiently aroused as to enact change?


Joel 06.28.05 at 12:12 am

Thanks, John. I just went back and re-read what I wrote and noticed what a terrible editor I am. I’ve corrected a couple of typos, but I’m probably still missing some. Can I blame it on inadequate bifocals?

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