Property Rights; D. Walker

THEFREEMAN IDEASON UBERTY PropertyRights, AmericanConstitutionalism, and InternationalHuman Rights "Law" by Daniel F. Walker A s readers of this journal realize, prop erty rights are not the rights of buildings and land, but the rights of humans to own, use, and dispose of property-tangible and intangible, real and personal. Over the last six decades, American courts have greatly diminished the judicial recognition of con stitutional protection of property rights, though the Supreme Court in recent years has begun occasionally to "rediscover" those rights. To no surprise, the ethereal world of international human rights law reflects America's diminished appreciation and de fense of property rights. One need only examine three of the primary documents of international human rights, and review re cent American constitutional history, to rec ognizethe low legalregardfor property rights at the domestic and international levels.

Consider Article 21, paragraph 1 of the American Convention on"Human Rights, born of the Organizationof AmericanStates: 1. Everyone has the right to the use and enjoyment of his property. The law may Mr. Walker is an attorney in private practice in Tallahassee, Florida. subordinate such use and enjoyment to the interest of society. At least paragraph 2 offers some minor comfort: 2. No one shall be deprived of his property except upon payment of just compensa tion, for reasons of public utility or social interest and in the cases and according to the forms established by law. "The law may subordinate such use and enjoyment to the interest of society." A rhetorical barrier such as the "interest of society," "public utility," or "social inter est" is no barrier at all to government interference with property ownership; all a government entity need do is declare that a government "acquisition" of private prop erty is done in the' 'interest of society," and the victimized property owner is legally powerless.

Private Property Rights in America Followers of the demise of constitutional protection of property rights in America 474 475 A viewfrom Hawaii'sDiamondHead. Approximatelyhalf ofHawaiianland is ownedby the federal and stategovemments. understand this; at one time, private prop erty was not to be taken by government unless for a "public," as opposed to "pri vate," use. "Public use" historically im plied such items as public roads, military installations, or buildings and land to be used by government to carry out its limited, enumerated duties. The U.S. Constitution is clear; as stated in the "takings clause" of the Fifth Amendment, " ... nor shall pri vate property be taken for public use with out just compensation." Now labeled by scholar Richard Epstein as the "invisible" public use clause, the U.S. Supreme Court nearly erased the claus·efrom the Constitution in the 1954case of Berman v. Parker, an urban renewal case. In 1984, an allegedly "conservative"

Supreme Court finished its mission of constitutional deletion in Hawaii Housing Au thority v. Midkiff. 1 At issue was a law which empowered land tenants to enlist the aid of the Hawaii Housing Authority to take by eminent do main the leased land owned by the Bishop Estate charitable trust, the ultimate pur pose being that the tenants would then purchase land from the Authority. The Ninth Circuit Court of Appeals declared the law unconstitutional, stating, "We must decide whether the Federal Constitution permits a state to take the private property of A and transfer its ownership to B for his private use and benefit. It is our view that it was the intention of the framers of the Constitution and the fifth amendment that this form of majoritarian tyranny should not occur.,,2 476 THE FREEMAN • SEPTEMBER 1994 A unanimous Supreme Court disagreed and upheld the law. Associate Justice Sandra Day O'Connor dismissed Contract Clause and due process attacks in a footnote . Focusing discus sion on the Bishop Estate holding title to 9 percent of the land in Hawaii, she wrote, "The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack cer tain perceived evils of concentrated prop erty ownership in Hawaiia legitimatepub lic purpose.,,3 By inference, one could conclude that private concentrated owner ship is bad, but government concentrated ownership is good; the federal and state governments owned 49 percent of Hawaii land. Justice O'Connor's opinion was silent regarding the percentage of government owned land.

Jhe cgovernment did not condemn the property in order to construct a government building, or to build a street, or for reason of military defense. The government interfered with private property rights solely to inter vene in the private housing market, for the benefit of private citizens, contrary to the ownership rights of the landlord and the contractual relationships between the land lord and tenants. Justice O'Connor de stroyed the public use requirement and substituted a "public purpose" require ment, stating that' 'where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." As a matter of constitutional law, the "public use" clause is a dead letter. It might as well be the "interest of society" clause in the American Convention on Human Rights. (At least certain state constitutions are explicit, if jurisprudentially repugnant, in their language. For example, the Florida Constitution states that private property may be taken for a public purpose rather than use, thus the government's legalpower to take private property is acknowledged as legally legitimate for many more reasons than if only for public' 'use. ") The United Nations versus Private Property For an even more depressing look at the absence of property rights recognition at the international level, consider Article 17 of Universal Declaration of Human Rights, courtesy of the United Nations: 1. Everyone has the right to own property alone as well as in association with oth ers.

2. No one shallbe arbitrarily deprived of his property. Wonderful. The government cannot take your property arbitrarily-that is if the gov ernment draws your name, deed, or title out of a hat. Otherwise, presumably, if the government has some desire for your prop erty, and has some non-arbitrary procedure or protocol for taking the property, then the government gets your property. Even more shocking, in the collective opinion of the United Nations the govern ment should not be required to compensate you once it has your property. At least the ,'just compensation" constitutional require ment retains some life in American law-if you have a good enough legalteam to assure that the government does justly compensate you. (The much discussed Lucas case from the 1992 term of the Supreme Court revolved around the just compensation issue, and the sole ray of jurisprudential light from that case is that if a government regulation re moves all viable economic value from a property, then the government must com pensate the property owner. While the Lu cas decision was a victory for property rights proponents within our constitutional system, the victory was but a successful skirmish.) The Universal Declaration certainly is a product of twentieth-century minds, and more's the pity. While certain rights, prop erly understood, are deemed worthy of protection, so is a laundry list of entitle ments to other persons' property via social security, public insurance schemes, ad in finitum-the usual "social" or welfare PROPERTY RIGHTS, AMERICAN CONSTITUTIONALISM 477 ,'rights. " As pointed out by Gottfried Dietze, any document produced to provide some sort of legal bridge among communist, capitalist, and social-democrat nations can not contain strong provisions on behalf of private property; furthermore, the weak regard for private property "was due to the fact that Western democracies had become sympathetic to a social appreciation of prop erty, whether they openly professed such a sympathy in international negotiations or not. No matter how gradually and imper ceptibly it may have happened, a social conception of property has become so gen erally accepted by the so-called free societ ies that it constitutes a veritable ius genti um. ,,4 American legislatures and courts began to severely diminishproperty rights in the 1930s and 1940s. It is no surprise that if America would not stand fast for the human right of property ownership, neither would the rest of the world.

The European Experience But what of the European experience with regionalized international human rights? In the First Protocol to the Convention for the Protection of Human Rights and Funda mental Freedoms, a product of the Council of Europe's member nations, property is addressed as follows: Article 1 Every natural or legal person is entitled to the peaceful enjoyment of his posses sions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of in ternationallaw. The preceding provisions shall not, how ever, in any way impair the right of a State to enforce such laws as it deems neces sary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. "Public interest." "In accordance with the general interest. " "Secure the payment of taxes or other contributions or penal ties." Again, we see a document which provides a slight acknowledgment of prop erty ownership, and provides no shield against government encroachment upon the sphere of individual sovereignty made more robust by private property. Europe we need not look to.

Fortunately, neither the Universal Dec laration nor the American Convention have any legal effect upon domestic American law. The Senate has not ratified either treaty, despite considerable legal-academic and "progressive" support for incorporat ing the provisions of these "human rights" documents into the framework of funda mental American law. Still, the rhetorical surrender by succes sive American administrations regarding property rights as human rights reflects three generations of Americans living off their inherited philosophical capital-with little understanding of what happens when the capital of property rights is exhausted by social engineers in the' 'interest of society. " Proponents of "international human rights" and strong constitutionalism would do well to read the words of Canadian attorney and columnist Karen Selick, who recently addressed the topic of "property rights as human rights" quite elegantly: In fact, property rights are the inevitable extensions of those most basic of human rights, the rights to life and liberty. If a person chooses to spend some of his precious time on earth converting his energy into property (Le., working for a living), then depriving him of that prop erty later is equivalent to retroactively depriving him of that portion of his life which he spent working. It's like expro priating an entire chunk of his life. It's like enslaving him.5 D 1. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

2. Midki./fv. Tom, 702 F.2d 788, 798 (9th Cir. 1983). 3. 467 U.S. at 241. 4. Gottfried Dietze, In Defense ofProperty (1975), p. 171. 5. Karen Selick, "Property Rights Are Human Rights, Too," Canadian Lawyer (June/July, 1993), p. 46.