CHAPTER 6

THE RIGHT TO PROPERTY AND TO CONTROL ITS USE

Maybe nothing sums up the classical liberal idea of individual rights as much as the notion that every person has a right to make as much of himself by his own initiative as possible, and to be judged as an individual and not just as part of a group.

We're returning full-circle to the notion of self-ownership, because we've already covered some of the bases of privacy rights and town-crier-style free speech, and weighed them against the collective demands of community and particularly "family values."

There are two groups of rights in established constitutional law at issue in personal sovereignty questions: first, the various protections against unjust government takings, and second, equal protection of the law.

But the right of self-determination, to a libertarian, invokes the even more fundamental notion of property rights; indirectly, equal protection and freedom from discrimination are forms of property rights on their own (which may conflict with the rights of those who own tangible property directly).

Property, whether real, tangible, or intellectual, is the tool or vehicle by which the individual expresses himself as a particular person to his community. Property rights, along with human relationships, in my thinking, form the cornerstone for Thomas Jefferson's "pursuit of happiness." One, of course, has a right to property that one has earned or that one has received through a legitimate free-will gift or inheritance. Property may be physical, real (such as land) or intellectual.

Property rights imply the pride of home ownership, the joy of gardening, cooking or tending to a basement model railroad, the pride of authorship of a novel or symphony, attention to one's personal appearance, and so many other daily things we take for granted. Now, my property, by definition, is mine to control, and is not automatically available for appropriation for the common good, no matter how compelling somebody else decides that is.

What does all this have to do with some of the better-known procedural protections in the Bill of Rights? By these, we mean the right to a speedy trial and, in most cases, a trial by jury; freedom from ex post facto law; the exclusionary rule, Miranda rights, and probable cause; freedom from cruel and unusual punishment; freedom from self-incrimination; freedom from double jeopardy; and due process of law.

In colonial times, our founding fathers, despite their lofty liberating rhetoric, were first concerned about constructing goal-line defenses to protect the individual from the worst whims of a previously monarchial government. Some historians more generously point out that our founders went to great lengths to limit the powers of government to do ordinary things and to give the individual an indirect voice, rather than the collective voice of a vote, in matters that could affect him. Still, the subtleties of a modern notion of self-concept were not yet fully appreciated. There are various practical situations where the current protections of these rights may not be sufficient to prevent totally unjust losses for particular individuals and abandonment of their own plans.

For example, if one is falsely accused of a crime (or sued in frivolous litigation), one may have to spend down almost all of one's personal savings and resources to clear oneself.

"Due process" is perhaps the central concept of justice. Substantive due process is supposed to ensure that laws are essentially "fair" and reasonable for the individual. Procedural due process requires that the government go through certain steps before taking away a person's freedom, assets, and (from literal wording) even property.

This can become troublesome. We know from the military cases that the government can give a soldier an honorable "administrative" discharge for homosexual conduct with very little required in the way of due process, supposedly because criminal proceedings are not involved. One does not necessarily have a "property" right to a particular career or even accrued retirement benefits! (In the military, due process might be further compromised by a clause in the Fifth Amendment making certain exceptions during time of war.) Maybe this should be changed.

Notions of due process have not protected civilians from civil asset forfeitures in situations where the government suspects property (such as personal automobile) is used to traffic in controlled substances. There is a bill proposing that any person carrying more than $10,000 in cash may be ("rebuttably") presumed to be carrying drug money which may be subject to forfeiture. In some southern states, civil forfeiture has been greatly abused by corrupt police departments. In the past, the entire stock of a bookstore could be seized for selling one legally obscene work. In practice, the burden of proof has fallen on the property owner to recover his property or be compensated for it. In some cases, individual landlords have lost homes to forfeiture because of tenant behavior and still owed the balance of the mortgage. Similarly, a person giving someone else a ride in a motor vehicle might lose his vehicle if stopped for a traffic offense and the passenger, unbeknownst to him, was carrying illegal drugs. (In Iowa, there was a case where a driver was convicted of a felony in such circumstances.) Government claims that, for civil purposes, the "property" rather than the person is guilty of the crime and has used this logic to clear inner city neighborhoods of a lot of potentially useful moderate-income rental housing. Recently, however, the New Jersey Supreme Court affirmed the right of an automobile owner (after a drug seizure due to the alleged activities of her husband) to a jury trial to oppose the forfeiture, and used reasoning going back to English maritime law in the 17^th century.

The notion of sovereign immunity, which used to protect agents of the state from civil (and even criminal) liability for their own misdeeds, is closely associated with asset forfeitures and even, as we saw in the gay military cases, denial of fair due process in removal of persons from public service. Libertarianism opposes sovereign immunity.

The due process concept in the 5th Amendment is closely associated with the takings clause, which prohibits the taking of property without compensation. Many libertarians would oppose the use of eminent domain altogether (and, as with the case of a New Jersey casino, some houses are bought by the state and sold to private interests). Very encouraging is a recent bill in Congress (Private Property Rights Implementation act) which would improve judicial (as opposed to administrative) remedies in federal eminent domain or other actions against large landowners.

Another touchy area is licensing. Some libertarians advocate eliminating all state or government licensing and allowing private industry to regulate itself. Common sense tells us that in some fields ¾ medicine, airline pilots ¾ proper regulation, including certification is required for public safety ¾ although this could be accomplished by the cooperation of industry and labor. In other fields, such as actuarial science, industry regulates itself to keep the profession small. In some rapidly growing fields, such as information systems, the fiduciary and privacy arguments for certification are strong but very difficult to mobilize. But in some cases, government licensing requirements simply keep people from starting their own businesses. Consider the California requirement for a cosmetology license in order to introduce a simple innovation in hair-styling. In New York City and Miami, it is illegal to start private van services, because they compete with unionized public transit systems. In Charlotte, NC, a woman who bakes sweet rolls at home with a special recipe is put out of business because she doesn't have a commercial kitchen. What about writers? Well, I say self-publishers generate interest in reading and in debate and actually help, rather than compete, with the established publishing industry.

Labor unions certainly enrich this discussion. Regulation in such industries as transportation tends to restrict the movement of workers between companies and forces them into adversarial labor unions. Courts have long recognized an almost "fundamental right" to collective bargaining by workers vulnerable to control by large employers. On the other hand, only some states recognize a person's fundamental "right to work" without joining an established union. As demonstrated by the film Coal Miner's Daughter, unions have formed an important role in offsetting the tendency of some employers to exploit relatively unskilled workers with individually weak situations in the economy. Yet, unions can force members to go on strike, to do without income, for other people's causes that the members may not personally support. In 1998, Honeywell was struck because it wanted to require new workers to pay part of their health insurance ¾ a position that actually would require gay employees to support a contract that is incrementally discriminatory. Unions tend to replace one authoritarian and corruptible structure with another! On the other hand, strike-breaking could be seen as "immoral" behavior if the strike is motivated by clearly unethical behavior by an employer, endangering workers or customers.

Property owners can behave "privately" in ways that harm neighboring owners. Pollution, deforestation, and litter can all damage "nearby" property. Libertarians tend to believe that the tort system (maybe amended by "loser pays") provides adequate remedies and behavioral change for these problems and tend to reject zoning laws (although they welcome private contracts among homeowners and condo owners).

Think about gun control in relation to property rights. Now, the weight of research suggests that the 2nd Amendment was originally intended to protect the right to bear arms in community common defense ("militia") efforts. However, some state constitutions (such as Virginia's) discourage the reliance upon standing armies and imply that self-defense is very much at least personal or family, as well as police, responsibility. Yet in most jurisdictions, one may use a weapon with deadly force only when one's life is in danger, not to stop a burglar from taking property. Should this be changed? I don't list the right to bear arms as a separate "fundamental right" for my own proposals, but I do see it as derived largely from property rights. (There is recent legal scholarship suggesting that the right to bear arms was indeed originally intended as a specifically affirmed "individual" right; see the Bibliography [Volokh].)

Finally, consider the use of taxation itself ¾ the use of the police powers of the state to take money by force and use it for public good. We grow up with the idea that this shared sacrifice is inevitable in a democracy. But taxation can be a tool for social engineering (starting with marriage laws) and an excuse for government intrusion into private lives without sufficient due process. To some libertarians, taxation is the ultimate insult to property rights; there are models to show how a free society might function without taxation, from sale of public assets to user fees. To do without taxes, we probably will indeed need to keep an eye on the morality with which we propagate our personal values, and on whether we will allow ourselves to become involved in meeting the needs of others immediately around us rather than letting the state mop them up.

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Of course, many people have been denied the opportunity to make the best of themselves because of irrational discrimination. African-Americans have had to overcome slavery, Reconstruction and segregation and still face subtle or indirect discrimination today. Gays have been denied opportunities because of their private associations and inclinations, over notions of "moral turpitude."

Governments, in the past, have certainly promulgated discrimination. We can consider the Jim Crow laws, the Chinese Exclusion Act, draft and deferments, and of course the military gay ban. Governments arguably make themselves the instruments of powerful private interests which support them with campaign contributions.

Discrimination, most obviously when promulgated by government itself, obviously violates an individual's "property rights" because it interferes with the person's ability to use his own assets to make the most of himself. When discrimination is practiced in private hands, it might be limited by market pressures, or it may be seen as so deeply ingrained from the past that it can be reversed only by a deliberate reversal in public policy. There is a concept called "equal protection of the laws," implemented in the 14th Amendment, which also has been interpreted as holding states accountable for observing many provisions of the federal Bill of Rights ("incorporation doctrine"). Although taken literally the equal protection clause applies to individuals, there has developed a body of case law which evaluates equal protection claims in terms of various minority groups. The logical political reaction is for various disenfranchised segments of society to pressure Congress or legislatures to give them minority status. For gay men and lesbians, the basic problem with equal protection arguments is that they would probably apply only if Congress recognized gays as a suspect class in civil rights law, although there are good arguments (such as political powerlessness and past discrimination) which would convince some courts to accept equal protection arguments now.

Anti-discrimination statutes are a bone for libertarians, who consider them to violate property rights. Some anti-discrimination laws, such as those dealing with age, are hard to enforce; others, such as the Americans with Disabilities Act, tend to invite (often unsuccessful) abuse attempts (such as mental health or stress claims). However, these laws do send a message, decided by our democratic political process, that discrimination is wrong and unacceptable and that the state will try to help the victims of discrimination. The problem is, when government tries to fix past discrimination it tramples upon individual property rights and often creates discrimination in reverse.

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We need to be careful when we throw around the emotionally laden term, "affirmative action." When we speak of special efforts by businesses, schools or governments to help people who, as individuals, have been disadvantaged or handicapped economically by their upbringing, we elicit little disagreement. In fact, affirmative action in the Kennedy years was supposed to mean, "aggressive non-discrimination" (see Roger Clegg, "Beyond Quotas, A Color-Blind Vision for Affirmative Action," Policy Review, May-June 1998, p. 12). However, "affirmative action" has come to mean explicit preferences to individuals (or set-asides for contractors) merely because of race or, sometimes, gender. This is usually justified superficially as compensation for past (ancestral) discrimination.

Those who advocate affirmative action do deserve more intellectual respect from conservatives (like me) than they usually get. When someone (a "liberal"??) advocates specific racial preferences, she is saying something like this: "Bill, you are a Caucasian male. As a result, you have enjoyed automatic advantages throughout your life that you did not earn by your own efforts and of which you have remained largely unaware. It is time that you surrender some of these unearned advantages to others who were denied them." I cannot deny some of this. Once, as I passed through an immigration checkpoint in southern Texas, I was waved on by the officer without question once he saw that I am Caucasian. Another time, I contemplated an employment offer from a black-owned consulting firm that might not have been in business without affirmative action. A different form of this argument goes like this: "Should we expect people who started at the back of the line compete with people who were allowed by previous social rules to butt in?"

The mentality that accepts group preferences is a natural result of conventional understanding of history, which often revolves around conflicts (especially wars) and subsequent treaties or agreements between nationalities or other large groups of people, such as native Americans in our own country. History rarely exalts the circumstances of specific individuals; rather it insists that, at any point in time, total resources are limited and must be allocated fairly to groups of people. However, this approach sometimes also degenerates into emotional rhetoric, such as the idea that we must disembody the "white male privileged establishment" before oppression can truly be stopped and before individual rights can be enjoyed in good conscience.

The Supreme Court (in Bakke, 1978) has said that racial preferences are acceptable in certain cases, when race has been a factor in the individual's own life and when race is considered as one of many factors. In 1989 (in City of Richmond v. J.A. Croson Co) the Court ruled that state or local government "racial preference" programs must meet a "strict scrutiny" test, which limits state-mandated racial distinctions to remedying past discrimination caused by the state itself, implemented in as narrowly-drawn a way as possible. In 1995, in Adarand Constructors v. Pena, all federal racial preference programs were ruled as presumptively unconstitutional unless they met a similar strict scrutiny test. (See Todd Gaziano, "The New 'Massive Resistance,'" Policy Review, May-June 1998, p. 22.) In 1996, the voters of California prohibited racial and gender preferences (although not other preferences such as age) in university admissions and contracting and this legislation was upheld by an appeals court. Voters in Houston, Texas rejected a similar ordinance and business leaders actually came out for moderate use of preferences as a way to maintain productivity and racial peace.

There are several reasons to oppose explicit preferences and quotas. The first reason is the most obvious, that in certain situations they lead to hideous injustices among the individuals involved. Another reason is that they maintain race-awareness, when we want to encourage a culture where people care less about race and are motivated less by it in personal decisions (such as home purchases). Along these lines we may rightly object to the notion that we must supply black lawyers and doctors to serve black communities; this motivation simply maintains a segregationist and separationist mentality that ultimately encourages the kind of unearned privilege we reject!

But the biggest reason is totally psychological. We want a culture in which people feel they can control their own destinies. (At least, I do!) Race and gender preferences place undue emphasis on the classes to which people belong rather than on their own efforts. They insinuate that we gain our rights only by negotiating privileges for the group to which we belong! They undermine the fidelity to personal responsibility that must accompany individual liberty.

Instead, we should emphasize special attention for disadvantaged students and job applicants, regardless or race, gender, or (for that matter) sexual orientation. It's OK by me to give extra consideration to a particular person who, as an individual, was discriminated against because of race in the past, but not to give the preference just because of race when that person had no particular problem is his or her own life.

Some argue that affirmative action urges organizations to use racial and gender statistics as "measures" of compliance without explicit quotas. Furthermore, private organizations, particularly educational institutions, may want to achieve certain statistical measures of race or gender composition in order to ensure that their clients, customers or students benefit from a diverse background and exposure.

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Proponents of ENDA and other legislation to statutorily protect homosexuals from discrimination often point out that such laws explicitly would not require "affirmative action- style" preferences. However, with race the same advocates often argue that some preferences are necessary because without them, people, just because of human nature, will at least unconsciously continue discriminating. These are inconsistent positions.

ENDA, of course, would protect people not just because of their inborn traits but rather for their perceived inclination towards certain values and behaviors. But religion (that is, religious practice) is also behavior. If we protect people from discrimination on the basis of religious behavior, why not protect them also on the basis of choice of adult sexual partner? The "best" reason is that partner choice is not yet a fundamental or exalted right. We remember here that in 1996, the Supreme Court, in Romer v. Evans, indicated that states could not block anti-discrimination legislation or pass discriminatory legislation simply to express animus toward any group. It did not need equal protection to reach this result ¾ it simply maintained that animus cannot be a rational basis for disparate treatment of any group by government. (Some legal scholars claim that Romer did not appeal to a specific standard of review.)

Can gay people be protected meaningfully by anti-discrimination legislation that does not require disparate impact statements and which excludes so many entities (religious groups, the armed forces, employers with fewer than fifteen people)? Indeed, the existence of exclusions implies morally inappropriate "preferences" for the military, for religion and so forth. Although it may often be effective with responsible institutions for the law to say just "anti-gay discrimination is wrong," actual enforcement would be problematic. Would employers feel that they must take some kind affirmative step, such as funding a company gay group, to show they don't discriminate? This would invoke what some people see as "special rights" for gay people within a company. Of course, a company could choose to do this anyway for "conservative" reasons, out of a belief that diversity exposure is good for business (and subtle understanding of the needs of customers).

It should be no surprise that in practice, supply and demand (especially for labor that requires high intellectual skills) affect attitude towards sexual orientation. Employers of high-tech workers tend to court social diversity as a business plus. Even when multiple-choice "personality tests" are given for executive positions, gays and lesbians often do well on these queries. At the other extreme would be certain religious or conservative cultural or fraternal organizations. Some law firms have had a reputation for inhospitality to gays (because of perceived connections to the public) as do employers of sales professionals where social contacts (involving spouses) may be necessary. Blue-collar jobs sometimes have had problems, with sexual harassment against females and even against males in some almost military environments, as on oil rigs (where men may live together much as sailors would).

Would ENDA have the disadvantage of implying that discrimination is OK unless proscribed by positive law? Would it actually make some employers fearful of hiring gays, on the theory that they might be more likely to litigate later? This is probably more of a "threat" with a "group" that, compared to race or gender, is vaguely defined.

On my web page, I have proposed "A Conservative Approach to Employment Protection for Gays and Lesbians." (Look under the "special topics" link.)

Provisions of such a bill would include the following:

(1) No employer may ask a candidate's or associate's sexual orientation at any time, with only one exception: when the person is asked during a legal deposition or proceeding in litigation involving the company.

(2) No employer may ask marital status or marital intentions during employee screening; marital status may be asked in a confidential manner during benefits determination.

(3) No associate may be terminated "for cause" merely for stating homosexual orientation either inside the workplace or publicly outside the workplace. This provision does not mean that the employer needs to tolerate "inappropriate for business" conversation during work. This provision does not override employment at will (that is, discharge for no fault).

(4) No employer can make sexual orientation a contractual requirement for employment. (This prevents the kind of situation that arose in DuMuth v. Miller.)

(5) An associate's public statement of sexual orientation or advocacy of political causes with respect to sexual orientation does not create a common-law presumption that the associate may be prejudiced against customers or subordinates (or other stakeholders) whom he can reasonably suspect have moral objections to his various sexual behaviors.

(6) The only employers exempted from these provisions are proprietorships with fifteen or fewer associates. Religious organizations or other non-profits are not exempt.

Many activists insist that society adopt a formal position that discrimination against homosexuals as a class is always wrong, and that debate on the matter be seen as settled, as it supposedly is with race. Of course, we've already seen many reasons why debate on these matters seems far from settled.

If you see discrimination against homosexuals as always immoral, what about discrimination against immigrants? Understandably, Americans do not want illegal aliens to take their jobs (although these are often unskilled jobs many Americans don't want). But a really libertarian position would allow completely open competition for labor, and allow aliens to move and work here as the market demands. Certainly this competition among workers (once "protectionism" implied by immigration policy is removed) will turn into an effective antidote for the tendency of developed countries to "exploit" cheap countries. Open immigration would get rid of one problem for gays, the preference for legal spouses in immigration and asylum situations.

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My main focus has always been to stop government, not only from interfering directly with individual liberty with various surveillance and directly punitive measures, but also from "social engineering" of citizens' personal priorities in the most intimate of matters. Indeed, it is through the synergy of property and family (extended to include a whole network of personal significant others) that most people experience their own individualities and express themselves. Understandably, any government regulation of the use of property, however well intended, runs the risk of injuring personal liberty. Separation of individual civil liberties from economic freedom (and even separating individuals from corporations or small businesses from big companies in dealing with government) does seem like splitting apart conjoined Siamese twins. This observation has led to the "all or nothing" approach of many libertarian positions, and is well illustrated by the Nolan Chart (the "World's Smallest Political Quiz") offered by Advocates for Self-Government (http://www.self-gov.org). Yet, there must be times in a complex society where the stabilizing and reassuring influence of positive law in civil areas as well as criminal is surely necessary. Tort reform, bankruptcy, and anti-trust regulation might be three good examples. Environmental regulation might touchier: imagine laws designed to reduce consumer pollution with restrictions related to family size and lifestyle issues (as with the gasoline rationing and car sticker proposals of the 1970's). One test of regulation would be this: Will people actually have more freedom if a particular proposed bill becomes law than they would if it did not? Usually, the answer is "no," but in certain situations (as with intellectual property and business monopolies) it might be "yes." Ultimately, however, a world of expanded personal liberties will require that people factor civility and caring for others into their own long-term self-interest.