Land Stakes

Property Matters: How Property Rights Are Under Assault–And Why You Should Care, by James V. DeLong, New York: The Free Press, 390 pages, $27.50

This Land Is Our Land: How to End the War on Private Property, by Congressman Richard Pombo and Joseph Farah, New York: St. Martin's Press, 225 pages, $22.95

Over the past couple of years, supporters of limited government and individual rights have been puzzled and disappointed by the surprising speed with which the political momentum of the property rights movement has vanished. Beginning with the publication of Richard Epstein's Takings in 1985, the intellectual and legal communities started re-evaluating the role of the regulatory state in the American constitutional system, especially as regulations affected landowners. Epstein's argument–that regulators who denied property owners the use of their land were "taking" it, and that owners were therefore owed compensation, as in cases where the government explicitly exercised the power of eminent domain–caused state and federal courts to begin placing limits on bureaucrats and legislators. In the most noteworthy cases–Nollan v. California Coastal Commission, Lucas v. South Carolina, and Dolan v. Tigard–the U.S. Supreme Court somewhat haltingly admitted that, yes, the right to own and use property may be constitutionally protected. At the same time, grassroots property rights groups began to spring up, demanding legislative relief from the actions of overreaching elected officials and bureaucrats.

The 103rd Congress, under Democratic control, came close to enacting limited reforms that would have provided compensation for landowners when some of these "regulatory" takings occurred. And even though a stand-alone compensation bill didn't pass, that Congress was able to stop the creation of the National Biological Service, a new federal agency that would have given government employees and "volunteers" from environmental groups broad powers to trespass. As these persons attempted to inventory all the plants and animals in the territorial United States, the NBS would have let them enter private property without the consent of its owners. After the election of a Republican majority in 1994, as part of the Contract with America the House of Representatives passed a takings compensation bill by an astounding 277-141 margin.

Yet before the Senate could bring a similar takings bill to a vote, the entire Republican "revolution" fizzled. As a smaller, chastened Republican majority takes charge of the 105th Congress, takings compensation bills have disappeared from the legislative agenda. What halted the property rights juggernaut?

In part, property rights activists haven't been able to build political coalitions large enough to counteract the scare tactics environmentalists so effectively use. (See "Property Frights," May 1996.) And the property rights movement has lacked systematic, accessible defenses of its position a lay reader could appreciate. Epstein's book is important, but it is heavy reading. Meanwhile, farmers, ranchers, real-estate developers, and residential landowners can cite examples of outrageous actions by regulators (and, in some cases, by courts). But these anecdotes have for the most part been published in internal newsletters, by vanity presses (sometimes featuring dubious scholarship or conspiracy theories that would cause believers in alien abductions to shake their heads), or in such ideologically sympathetic publications as The Wall Street Journal editorial page, National Review, and REASON. Professionally written and edited book-length treatments of the contemporary property rights controversy–volumes that lay readers can find in better bookstores alongside other mass-market nonfiction works about current issues–haven't existed. Until now.

While intended for slightly different audiences, Property Matters, by Washington, D.C., attorney James DeLong, and This Land Is Our Land, by Rep. Richard Pombo (R-Calif.) and veteran conservative writer Joseph Farah, are accessible, useful primers for readers who want to know why a grassroots property rights movement has emerged and why it has assumed a warlike footing.

Pombo, a cattle rancher from the Central Valley of California, has been a lightning rod on environmental issues since he was first elected in 1992. He has sponsored revisions of the Endangered Species Act that would allow property owners to receive compensation if the discovery of threatened or endangered species on private land caused the property value to fall. Newt Gingrich also chose Pombo as the co-chairman of the House Environmental Task Force, a group of Republican legislators that vets all environmental bills before they come to the floor for a vote. (See "Natural Lite,"October 1996.)

Pombo targets his book at a conservative audience, citing a biblical defense of property rights, reminding readers that the Founders explicitly protected property in the Constitution, and offering occasional (if somewhat superficial) attacks on central planning. He describes how wetlands have been transformed in the public mind and the public law from swamps that breed disease-bearing critters to altars at the environmental church. And he explores the growing "eco-federal" coalition of environmental advocacy groups, government regulatory agencies, and congressional appropriators.

By consistently portraying environmentalists as antagonists, Pombo should have no problem convincing an audience that may agree with him anyway. And by selecting as his co-author Joseph Farah, who worked with Rush Limbaugh on his second book, See, I Told You So, he has found a collaborator well-suited to appeal to readers who are politically engaged but aren't policy wonks.

But there's a troubling blind spot in this book. The explosive growth in the population of the West could never have happened without the massive government water projects that were started during the New Deal. Unlike the eastern United States, where water was plentiful and land scarce, in the West land was cheap and water dear. As DeLong explains in Property Matters, the Homestead Act of 1866 gave away 160-acre parcels of land to anyone who would stake a claim: East of the 100th Meridian, where 40 or more inches of rain fall every year, 160 acres of farm land would easily support a family. In the rain-deprived areas west of the 100th, however, such plots were worthless–unless they were located along a river or lake. Harnessing Western rivers made large-scale agriculture possible and helped support the migration of people from the East and the South.

Much development in the early West depended on water socialism. Before World War II, the easiest way to move massive amounts of water to Western lands was to build dams or otherwise divert rivers. (The centrifugal pump, which became widely available in the late 1940s, made it possible to reliably pump ground water to the surface.) Pombo's book doesn't mention the thorny problems caused by socialized water, a curious oversight, since his Central Valley congressional district would certainly be less populous and less prosperous without it.

You'll find no such gaps in James DeLong's Property Matters. Rather than offering sustenance to beleaguered fellow travelers, DeLong instead tries to win over skeptics and potential opponents. The result is a book that's engaging, well-argued, and openly cognizant of the complexities of politics and the law. DeLong goes beyond the familiar areas of wetlands, endangered species, and grazing to incorporate historical preservation, zoning, and even intellectual property in his discussion.

After opening with a few familiar horror stories, DeLong provides some historical background and then spells out his own principles, which are closely tied to those of John Locke. Locke explicitly rejected the feudal notion that the control of property is entrusted by God to the crown, arguing rather that property belongs to individuals. "Property does not have rights," DeLong writes. "People have rights, including the right to hold property. Efforts to draw a distinction between 'personal' rights or 'human' rights and 'property' rights produce mischief."

Yet complexities arise. Some land is held in common, owned by taxpayers and administered by the government; actions that originate on one plot of land often spill over to the property of others; and changing technologies require new interpretations of old laws. (When the bass frequencies from the subwoofers in your neighbor's Camaro cause your living room windows to rattle, is that trespassing?)

DeLong argues that while the Lockean vision can't eliminate these complexities, it can, through such mechanisms as due process and the rule of law, help individuals work them out in a manner more satisfactory than the exercise of raw political power. Before launching into an examination of the Endangered Species Act, wetlands laws, or zoning restrictions, DeLong offers a valuable chapter on political legitimacy in the Lockean tradition, which approximates the American constitutional system of limited government, individual rights, and federalism.

He also discusses the "unwritten" American constitution, a set of loosely defined principles that, when followed by elected officials and other government employees, give citizens a general feeling of trust about our public institutions. "A bedrock principle of legitimacy is that the government is not entitled to do anything at all unless its officials were chosen by the means prescribed in the Constitution, through free and open elections," he writes. "Laws must be passed in proper form by bodies duly authorized to enact them. Furthermore, these bodies must not be corrupt or overly self-interested, within reason."

Yet over the past 30 years or so, he argues, governing bodies and public officials have overstepped their written boundaries and the "unwritten Constitution." As a consequence, faith in government to exercise any authority legitimately has been undermined. The horror stories told by property rights advocates about environmental bureaucrats run amok are but a few examples of these uncontrolled exercises of power.

As regular REASON readers know, environmentalism has become a form of secular religion, with green activists claiming that environmental goals must trump all others. DeLong argues that if this vision is allowed to continue unchecked–if environmental agencies can violate the boundaries of their authority to pursue their objectives–then what's to stop regulators in other parts of government from similarly seizing power when it suits their ends?

Libertarians make this point when discussing, say, drug laws, but not so often when they talk property rights. And as government officials routinely break the rules (or refuse to enforce them) to serve their own purposes, individuals start to believe that they must use the political process–initiatives to limit taxes or terms of office, for instance–to restrain political agents. But relying on political reforms to limit government power is risky: In an election, if your side gets one vote less than 50 percent, you get nothing.

DeLong also blames the courts for refusing to defend property rights with the same vigor as religious freedom or freedom of speech. The courts have remained on the sidelines, he says, as "property is conscripted for public use as a wildlife refuge or environmental buffer. Federal legislatures are exercising power over matters of local concern, without competence or knowledge of local conditions…. Burdens are put on one person or a few that should properly be borne by all…. Appeals and objections are decided by the same agency and even the same person who made the original decision." This judicial passivity is a principal reason many members of grassroots property rights groups decided to become political activists.

And while jurists from Oliver Wendell Holmes to Clarence Thomas have pointed out that voters can always repeal silly or arbitrary laws, DeLong says, "Voting is a very blunt instrument for preventing abuses of power that affect only limited numbers of people." A government "that wishes to maintain its legitimacy [must] set up better instruments of control over itself. Part of the current crisis of legitimacy is the courts' solemn insistence that citizens must rely on a remedy [direct democracy] that is palpably inadequate." As otherwise law-abiding individuals pursuing peaceful ends find themselves continually thwarted by bureaucrats, courts, and their fellow citizens, they're tempted to become peasants wielding pitchforks, threatening to undermine the rule of law as they seek what should be legitimate relief.

DeLong maintains his healthy skepticism of plebiscites and other political mechanisms throughout the book, making it a refreshing change from the horror-story-followed-by-outrage format so many other books about overreaching government policies seem to feature. And DeLong's chapters on water policy, the West, and zoning are full of surprising insights.

In particular, he takes a revisionist view of the Tellico Dam, a bête noire of most opponents of the Endangered Species Act. Tellico is a 1970s-era Tennessee Valley Authority project that was 95 percent complete when habitat for an endangered fish–the snail darter–was discovered in an area scheduled for flooding. ESA advocates demanded that the dam be left unfinished; opponents instead ridiculed the species-protection law, asking why saving a tiny fish no one had heard of before should be allowed to bring an important project to a halt.

Forget the Endangered Species Act, says DeLong: The completion of Tellico would "destroy a beautiful valley and splendid trout stream to gain a trivial increase in power generation at a nearby dam. Leaving out any environmental arguments, the dam [could] not meet any cost-benefit test." Indeed, a blue ribbon congressional panel, which had the legal authority to circumvent the ESA when the benefits of completing a project outweighed the costs of shutting it down, urged the feds to abandon the project. Yet Congress didn't follow its own expert advice, exempted Tellico from the ESA, and against all economic wisdom ordered the dam to be completed.

Tellico was a high-profile example, but not unique. "Because everyone was anxious to build dams," DeLong writes, "Congress was not interested in asking whether they made economic sense." By the 1960s, he notes, the federal Bureau of Reclamation "had 19,000 employees who did nothing but plan and supervise projects and look for new ones." The bureau "became a massive machine to provide expensive water at low cost." Indeed, landowners who get water from the Bureau of Reclamation receive a $2,000 subsidy for every acre under irrigation.

To the consternation of some free-marketeers, DeLong also acknowledges that some property will inevitably be held in common and that it will have to remain under political management. I've driven cross-country three times in the past eight years, and one of the many impressive things about the West is the incredible amount of uninhabited (and, from all appearances, uninhabitable) land located alongside major highways. Just spend a few hours driving I-10 in West Texas and New Mexico and ask yourself if you would want to own or manage that land, even if the feds gave it away.

Nor is DeLong a reflexive opponent of every zoning, land-use planning, and environmental regulation in urban settings. "There are some problems with them," he writes, "especially with the tendency to make them overly complicated and underly predictable, but the basics are not bad." He has little quarrel with the straightforward zoning laws of the 1920s. At that time cities were divided into districts, and within districts officials established a few categories, ranking permissible uses from highest (say, single-family residential) to lowest (industrial). "Within any district the designated use and all higher ones were permitted. If you wanted a house in the factory zone, you could have it, but you couldn't complain about the noise."

Yet beginning in the 1950s zoning became more restrictive, prohibiting such "mixed uses" as having new homes built in a commercial or industrial district. And as land-use planners started using zoning as a way to "make this a better world" rather than as a direct response to identifiable nuisances, zoning ordinances became, in DeLong's view, "tools for thievery."

DeLong concludes that property rights supporters must rehabilitate the Lockean vision with the general public and with the mainstream media, or else the peasants will take up their pitchforks. "The message must emphasize not only the importance of the right to property, but also the lack of conflict between this right and other values important in our society," he writes. "The world is full of choices and trade-offs and respect for property is the only way in which a society can let its members pursue their many diverse goals in a peaceful and efficient fashion. You should be able to call yourself an environmentalist even if you are not willing to become a thief." Property Matters is a valuable addition to the popular literature on political economy, with insights that go beyond today's property rights debates.

Rick Henderson ([e-mail]) is managing editor of REASON.