Rent control and environmental controversies across America raise fundamental questions about the status of property rights in our legal system. Any serious threat to the right to private property jeopardizes the free flow of commerce, science, the arts, information, and entertainment. Property rights are basic to a free society. Unless persons are free to do what they see fit with valued items, any freedom is merely nominal and can have no practical import.
Until the early part of the 20th century, the US legal system embodied considerable respect for each individual's (or voluntary group's) right to private property. Generally, the laws protected a person's sole and full authority over whatever had been honestly produced, earned, or otherwise obtained. The Fifth Amendment to the Constitution did allow for a very compelling public purpose to override property rights, but with the provision for "just compensation."
Of course, property rights had been mentioned in defense of such fundamentally unjust institutions as slavery, but this was a sorry example of putting good ideas to corrupt use. Persons can be owners but never owned. Apart from such absurd tendencies, the institution of private property enjoyed more than 80 years of fairly strict legal recognition. By now, however, only adherents to the libertarian political philosophy remain consistent, principled defenders of the basic human right to private property—other political groups have virtually abandoned the idea completely.
Many believe, mistakenly, that the decay of private property rights can be traced to the political left—to the writings and political activism of socialists, communists, anarchists, and populists. And indeed, in most of the controversies brewing over rent control in America—from Santa Monica, California, to Cambridge, Massachusetts—it is those on the political left who express only disdain toward the idea of private property rights. They consider the principle of private ownership of valued items merely an excuse, at least in this case, for unconscionable and injurious greed on the part of apartment owners and developers. The California-based Campaign for Economic Democracy, led by Tom Hayden and his "humanist" socialist allies, has been in the forefront of the attack on private property, with various environmental groups very close behind.
So it is evident enough that the agenda of the political left, from hard-line Marxist-Leninists to soft new leftists, calls for the abolition of the principle of private property rights, however much they may be willing to accept private property in certain instances on pragmatic grounds. Central planning or some kind of vague democratic mechanism is advocated by the left as a substitute for the authority of individuals or groups in a free society to decide what happens to goods from cars to musical arrangements and poems.
Yet in the United States it was conservative forces and objectives that led to the destruction of the legal protection of private property rights. The main assault came initially by way of our courts' increasing reliance on English common law, which embraced the quintessentially feudal idea of the police power, the state's (originally, the absolute monarch's) supreme authority and duty to guard the welfare, morals, and health of the realm (and subjects) over which it had jurisdiction. In the middle of the 19th century this essentially royalist, antidemocratic idea was invoked by conservative political forces to, for example, thwart the power of organized workers. Subsequently, such collectivist violations of property rights as zoning laws, architectural codes, censorship ordinances, blue laws, racial covenants, and similar measures were promulgated, not by the political left, but by conservative elements throughout American society. It is from this tradition that the idea of "state's rights" and "community control" derive.
Contrary, then, to widespread belief, American conservatives are not principled believers in free enterprise and private property rights. Even in our time, there is ample evidence for this point. It was a conservative Supreme Court that ruled in favor of local censorship of movies a few years ago—clearly overriding the individual theater owner's private property rights to do with and in his theater what he sees fit, regardless of public opinion.
One of the more blatant examples of conservative confusions emerged during the early 1960s in California. John Schmitz, now a state senator, campaigned in Orange County with a copy of the renowned economist Ludwig von Mises's book Human Action—which advocates a totally free market—at the same time as he was urging the California state legislature to prohibit topless dancing in nightclubs. Schmitz was also one of the fiercest opponents of antidiscrimination laws in the sale of real estate, all in the name of the sacred right to private property!
Is Schmitz's case an exception? Consider the long history of censorship advocacy by such mainstays of conservatism as National Review, William F. Buckley, Jr.'s magazine, or the infamous support conservative forces have given to no-knock laws in the futile, antilibertarian fight against private, victimless consumption of drugs. As in the past, so today conservatives are reluctant to extend the principles of liberty beyond the very selective domain of market activity, and there only as a matter of pragmatic convenience—that is, in the name of efficiency, provided what is produced and traded meets with their approval.
The legal approval of what must have been recognized as an essentially conservative assault on the principle of private property rights came early in the 20th century, when the Supreme Court upheld zoning ordinances as a proper exercise of the police power of cities. And once this is recognized, it is no longer possible to credit FDR and the New Deal alone with accelerating a movement away from a basically free republic toward a centralized, interventionist welfare state in the United States.
Today's political left, too, is merely making its own particular use of the legal precedents conservatives so eagerly supported and the courts established earlier. When apartment owners in Los Angeles shout "Freedom, freedom" outside Mayor Thomas Bradley's office in protest against rent control, thinking that left liberals are their enemies and conservatives are their allies, they should think again. They should consider that, whereas the left liberal wishes to control the property of apartment owners in order to make apartment living more convenient for some people, conservatives have always been willing to control everyone's property so as to make the use of that property conform to their own aesthetic, racial, religious, and related opinions.
The simple truth is that there is not a great deal of difference in principle between the left and the right in American politics. Certainly neither is a principled defender of human liberty and each individual's right to private property.
Tibor R. Machan is a senior editor of REASON. He teaches at universities in New York and California and is the editor of The Libertarian Reader (Rowman & Littlefield).