New Property Rights—

In Detroit and Middlebury

 

Martin Harris

Martin Harris lives in Brandon, VT. He is an architect, and a property rights and education advocate.

A Harvard Law School grad once explained to me (slowly, so that I as a non-lawyer could understand) that property rights should be seen as a bundle of rights, like a bundle of sticks that, together, are stronger than any one stick (or right) alone. He’d learned that particular analogy in Cambridge. Wasn’t the bundle of sticks (fasces in Latin) the logo of Fascism, (the concept of the social collective being stronger than the individual) I asked innocently, but it was too late; my legal education ended abruptly. I later learned that the bundle-of-sticks analogy was widely used in property-rights circles, from which source it had somehow gained acceptance in the ivied halls of academia.

As a generalization, I’d observe that folks who are enthusiastic over the collective (government) owning things, rather than individuals, are fond of pointing out that individual property rights are not absolute. I can’t own another person, for example, an issue which was settled in the Western world back in the 19th century but remains undecided in vast reaches of Africa today. Nor do I have a right to create a nuisance which extends onto someone else’s property, to exclude some classes of customers from my business establishment, or to use my land as I see fit if the duly-adopted zoning regulations say otherwise.

It used to be that freedom-from-competition wasn’t a property right (except for regulated public utilities, railroads, and airlines) but that’s been slowly changing in two ways: the formerly regulated large companies are now enjoying (maybe not the right verb) more competition and the previously unregulated small companies are now seeking less.

Herewith, a couple of examples: one from Detroit and one from Middlebury.

In Detroit, the City Council has just voted to set up a racially-exclusive business district downtown: all businesses there must be black-owned. It will be called African Town, and it has been established under the premise that non-black business owners in the neighborhood have been “stealing” customers from black entrepreneurs. What black business-property-owners in that part of Detroit have just acquired is a new property-right: freedom from competition from non-blacks. Conversely, non-blacks as a class have just lost one of those rights-sticks: the right to conduct business from business-zoned property in the newly-demarcated African Town.

In Middlebury, Vermont, the argument is about size, not race, with small business owners and their advocates in government claiming a similar new property right of freedom-from-competition with respect to the so-called “big box” stores, the argument being that, as in Detroit, it’s OK and even desirable to enhance the property rights of one class of land-owners at the direct expense of another class, and of the general (customer) public. So-called “studies” are under way to see whether such a zero-sum legal maneuver can be justified to the local electorate.

My guess is that, in both places, the majority (collective) point of view around here on such matters is no longer very free-enterprise-oriented, and that in their enlightened view such discrimination serves a noble social purpose and should therefore be adopted, irrespective of what the Fifth Amendment says about government “takings” of private property. I’d further guess that the Michigan Supreme Court, having just ruled that the earlier Poletown taking of some owners’ properties on behalf of others was a Fifth Amendment violation, will rule likewise on the African Town case, when it comes before them, as it will. I wouldn’t be equally sanguine about the Vermont Supreme Court, based on its recent decision-record. Quite a number of property rights-sticks have been legally removed from the bundle around here by that black-robed group-of-five in recent years.     *

“Of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” --Federalist No. 1