WHY THE PUBLIC PLUNDERING OF PRIVATE PROPERTY RIGHTS IS STILL A VERY BAD IDEA

Real Property, Probate and Trust Journal, Spring 2006 by Thomas, David A

Editors' Synopsis: This Article details the history and development of the American conception of private property rights. The Article illustrates areas where that conception conflicts with some contemporary American exercises on behalf of the public interest. The author warns that while private property rights should not go unrestrained, giving too great an influence to the notion of public property has dangerous consequences to every American's personal and economic freedom, including the stifling of the individual incentive that made America the most prosperous nation in world history.

I. INTRODUCTION: PRIVATE PROPERTY RIGHTS IN WESTERN CIVILIZATION

The material progress of Western democratic civilization has derived significantly from the enjoyment of private rights in property, especially real property. Historically, surplus resources generated from property have fueled technological, cultural, and other advances. However, in modern generations, many have become concerned that unrestrained exploitation of property for private gain may cause a permanent consumption, degradation, or destruction of precious resources that are essential for general prosperity both now and in the future. Other concerns relate to private property's role in creating vast material inequalities in human society, which some also deem especially dangerous and undesirable for the future.

The usual remedy for these concerns has been to employ public or governmental power (1) in restraining or regulating the most harmful or excessive private uses of property, and (2) in governing the distribution of property resources among all sectors of society. And in the United States, the usual rubric for rationalizing these governmental actions has been to characterize them as assertions of public rights or fulfillments of public responsibilities to conserve property resources, even, if necessary, at the expense of already established private rights. Private property advocates, in turn, argue that suppression of private liberty and initiative by oppressive public regulation inhibits material progress and dampens the human spirit. The massive and deadly failures of twentieth century totalitarian societies strengthen that argument. However, even within the freer democratic nations, lively debate goes on over whether private property rights should be exercised mostly by individuals or in some communal or heavily regulated form.

This Article expresses the author's perspective on how private and public control over property will affect the peace and prosperity of future generations. Section II briefly reviews what is known about impulses toward private and communal control of property in early or less developed human societies. In Section III, the progression of laws governing private property ownership in early Anglo-American history is described, and Section IV recounts the illuminating experiences of the American colonists in dealing with private ownership of a seemingly limitless supply of land. Section V describes how legal power over private property rights in the United States is divided between federal and state governments. Section VI reviews several areas of contemporary property rights where the clashes between private and public rights are most fiercely contested and identifies the competing values that have the most significance for the future. Section VII concludes with thoughts about what will be and what should be the property ownership regimes for future generations in America and in those areas following the American model.

II. THE HISTORY: How PROPERTY OWNERSHIP CONCEPTS EVOLVED

A. Does Private or Communal Control of Property Best Fit the Human Spirit?

Reviewing how human societies of the past have recognized and administered private and communal property rights may inform us about how better to structure property rights in future societies. This section asserts that (1) early and less developed societies widely recognized concepts of private property, (2) these societies evinced no consistent preference for individual over communal private property rights, and (3) growing economic sophistication in early societies greatly intensified the need for and value of private rights in land.

The debate over whether less developed cultures commonly recognized private as opposed to communal property rights in things other than land is relevant to, but not necessarily dispositive of, questions about how to arrange property rights of the future. Even a right communally held by a kinship group or some other limited community implies some concept of property rights beyond the notion of common property indiscriminately available to all. Moreover, the evidence is strong that individual property rights attained widespread recognition among less developed cultures.

To some extent, the debate over whether early humankind held property privately or communally has been stimulated by the desire or need of some to show that humankind's innate or instinctive notions about property are private, rather than communal or communistic. Somehow, according to this reasoning, if property concepts prevailing in the state of nature can be established, they will serve as a guide for finding the most suitable property regimes in modern and future legal systems. Or expressed more simplistically, if humankind instinctively or innately favors notions of private property rights even without the materialistic overlay of modern society, then the most effective contemporary and future political systems are democracies emphasizing individual resources and the agency to exploit them. Conversely, if the impulse of early innocence is toward the shared rights of communal resources, then perhaps that defines the ideal of the future.