One often hears the catchphrase, “human rights” matter more than “property rights.” That is wrong. Property rights are human rights, and undermining property rights threatens other fundamental human rights and human well-being.
Property rights are human rights because property is obtained by the expenditure of human time, talent and work, which justifies private personal ownership of things. As the philosopher John Locke explained, “Every man has a property in his own person. The labor of his body, and the work of his hands, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.”
Property rights support other fundamental rights. What would freedom of speech, press or assembly be without ownership rights to a means of expression, like a publication or place to speak?
Property rights are what create the security that makes the exercise of liberty possible. As Thomas Hobbes wrote, before the existence of government or laws to protect property, there is “no mine and thine distinct; but only that to be every man’s that he can get, and for so long as he can keep it.” Without secure property rights, human beings can focus only on obtaining present necessities rather than fulfilling future goals, for there is no assurance that what is worked for today will be there tomorrow.
When individuals are assured that what they own is secure, they can dedicate their time to other pursuits instead of just living for the day. As the philosopher John Hospers explained, “Only if property rights are respected is there any point to planning for the future and working to achieve one’s goals. Property rights are what makes long-range planning possible — the kind of planning which is a distinctly human endeavor. Without the right to property, the right to life itself amounts to little: how can you sustain your life if you cannot plan ahead?”
Protection of property is a primary purpose of government. As Locke wrote, “men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his.”
Yet the modern view that property rights are less important than personal rights has even worked its way into constitutional jurisprudence. As effective as the Constitution has been at protecting individual rights and liberties, the Supreme Court has historically not given property rights their proper constitutional due.
Rights which are considered fundamental by the Supreme Court are those which it deems to be “implicit in the concept of ordered liberty” and “deeply rooted in this Nation’s history and traditions.” Laws restricting fundamental rights must pass strict scrutiny to be constitutionally-valid, meaning that any restriction must serve a compelling government interest and be narrowly-tailored to serving that interest.
There is no right that is more implicit in the concept of ordered liberty, nor one which is more deeply rooted in American history, than property ownership. As Madison wrote in The Federalist Papers, “The protection of different and unequal faculties of acquiring property is the first object of government.”
Yet restrictions on property rights and freedom of contract receive only rational-basis review, under which “economic regulations” are constitutionally-permissible restrictions as long as they serve a “legitimate government interest” and the law is “rationally-related to that interest.”
But in its practical application and effects, the rational-basis test provides almost no limits on the restriction of property rights because, in the Institute for Justice’s words, “The rational basis test is not rational, is not concerned with the actual basis for the government’s actions, and is not a ‘test’ of anything except judicial willingness to turn a blind eye to the misconduct of other branches.”
As the Supreme Court explained the rational-basis test in FCC v. Beach Communications, “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” and “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”
The consequences speak for themselves. In the 2005 case Kelo v. New London, the Supreme Court infamously allowed a city to use eminent domain to sell a citizen’s home to a private corporation for the purposes of “economic development.” In the 1934 case Nebbia v. New York, the Court upheld the criminal conviction of a grocer who simply sold milk for a lower price than what the state permitted.
Thus it is that government, originally instituted to protect property rights, has become the very means by which they are so often infringed.