The Cornerstone of Liberty is at Risk

Last Sunday, C-SPAN aired my interview with BookTV on Cornerstone of Liberty: Property Rights in 21^st Century America, which I co-authored with Goldwater Institute Vice President for Litigation Timothy Sandefur. Watch the full video here.

The book talks about the importance of private property – a fundamental human right and the guardian of all other rights. You can’t have freedom of press or religion if you can’t own a printer or a church. That’s why the U.S. Constitution refers to private property more than to any other right. If we cannot be free to own, use, buy or sell property, then we cannot be free at all.

But as we explain in the book, years of bad court decisions and government regulations have chipped away at this foundation of the American Dream. A decade ago, the U.S. Supreme Court shocked the nation in Kelo v. New London by rubber-stamping a decision by Connecticut officials to seize private homes by eminent domain to make way for private redevelopment projects.

When the government takes your property by eminent domain, it is required to pay you for it. But when the government regulates your property value away, it takes away your property rights just as much as with eminent domain. Yet since the government does not technically take title to the land, judges often hold that owners are not entitled to any “just compensation.” People are therefore forbidden from using their property, but they are stuck with the taxes, the loan payments, and the possible liability if someone is injured on the land. Yet such regulations often destroy the property’s value, meaning the owner also cannot sell it.

Cornerstone of Liberty tells the stories of how these abuses have been devastating for property owners. Air Force veteran Robert Landers wasn’t allowed to install a therapeutic hot tub in his back yard. Mike Goodman was forced to leave housing for university students unfinished and exposed to the elements during the summer monsoons. Glenn Odegard was given permission to rent out a historic home he painstakingly restored, only to be told later – after he had put his labor and money into the project – that the town decided it didn’t like home-sharing.

But there is hope. Although Congress and the courts have failed to protect property rights, states have broad power to protect property owners against government abuses. At the Goldwater Institute, we developed the Property Ownership Fairness Act, a cutting-edge reform that requires government to pay you when it takes away your property rights, regardless of whether it seizes your home or regulates your rights away.

Ten years ago, after the infamous Kelo decision, Arizona approved a version of the Act. It is by far the nation’s strongest protection for property rights because it’s changed the way bureaucrats think about property regulation. That law prohibits both Kelo-style takings and the sneakier regulatory takings. Officials can still forbid people from polluting or using their property in harmful ways, but otherwise if they want to limit someone’s right to use property, they must pay for what they take.

The Supreme Court’s virtual abandonment of its obligation to protect property owners need not be the end of the story: States can act now to ensure that property rights—the cornerstone of liberty—are given real meaning regardless of what happens in Washington.