This is, I think, particularly in the aftermath of Kelo, an important question to consider. And I say this not simply because I disagree with that atrocious (but hardly original) decision offered by the left wing of the Court, but, also, because of the some-times outrageous reactions, to wit, along the lines of “I vow to do every thing I can to stop all exercise of eminent domain.” (It is, undeniably, a necessary, and good power, however abused it, potentially, may be.) Moreover, I wonder, really, what relevance has the notion of the right to property in this day?
When the Founders composed the Constitution, they inserted protections against eminent domain, that is, protection of private property. The belief in the right to private property, of the importance of property and of protecting this right, marked an important, overlapping concern of what we can classical liberalism and conservatism (rooted in Burke, and, perhaps, Bolingbroke, too — I defer to Daniel on this; I’ve read nothing of Bolingbroke’s, yet). Belloc, Chesterton, and their Distributist compatriots shared this belief, defending, adamantly, the rights of private property, and, furthermore, supporting a system of widely distributed. Berry and Röpke, especially, echo such sentiments. However, all of these defenders of property concerned themselves, not idly, with a necessarily too-broad conception of the word, but, primarily with productive property: The family farm, the (small,) locally owned and operated store, the craftsman or artisan’s workshop, the (small) laborer-owned factory. I mean not at all to suggest that they had no concern for a man’s non-productive estate, but, merely, that when they spoke and wrote passionately and unequivocally about the sanctity of private property, they referred, primarily, to the productive, personal forms of property owned and employed by the (semi-)self-supporting person (or family).
The widespread distribution of property, in the sense envisioned by the Distributists and their successors, hardly exists today, in a world of agri-business and corporate chain giants. The craftsman and artisan, by and large, have been replaced by facilities of mass-production. Of course, exceptions exist, but private property, as we generally think of it (and as was the subject of debate in Kelo), comprises little more than our homes and the lots whereupon they sit. (Mortgages existing on so many properties, even this home-ownership notion is not quite the coming to fruition of that great American dream.)
So, if we have lost the battle against the consolidation of productive property into the hands of a relative few, why should I — or any-one — really give a damn about the sanctity of private property rights? Now, I am sympathetic (sufficiently so, I grant, to disagree with Kelo on sentimental, as well as Constitutional grounds) with Ms. Kelo and the others whom New London removed from their homes, but, really, I reiterate, Who cares? I, certainly, should hate to see my (parents’) home, which my family has held for more than one hundred years, or my paternal grandfather’s farm, in the family just as long, fall victim to “progress” (which I, fortunately, needn’t to fear because, well, North Judson, IN, ain’t seen much “progress” lately). Nonetheless, as “all-American”, and, mayhap, charming, as it be, the idea of home as a man’s castle is, I submit, fairly farcical, especially, again, when the chances that the real owner of his domain is the First National Bank of Anytown, USA, are as high as they are.
Were what is true of my family’s home and my grandfather’s farm (and the dilapidated farm, near Carlinville, IL, owned by my maternal grandfather and great-aunt, neither of whom has seen the property in at least a decade) more frequently the case, I should, here, offer a defense of the sanctity of private property, in the post-productive property age, on communitarian grounds, videlicet, averring that sparing homeowners the threat of having their piece of the social fabric helps to re-enforce that fabric. On its face, as truncated as I shall leave it, the point seems to be weak, but, I believe, I — or, at least, someone more qualified than I — can make a strong defense of it. No matter, though! In a society as “mobile” and rootless as ours, it seems that, outside of “backwoods” pieces of Americana (my hometown one, to the extent allowed by those dastardly youth, including me, who have uprooted themselves), the connection between long-term property ownership and community seems to be losing its significance. (I may exaggerate here: Certainly, in urban neighborhoods not yet gentrified (and, perchance, someday, these new “gentry” will have cohered enough to rebuild a true community *fingers crossed*), those who’ve been around for long enough, whose families have been in the neighborhood for a couple of generations, the bond still exists. Nevertheless, I think some merit lies in my argument. Yes? No?)
Compounding the problems associated with this rootlessness, “[t]he law,” remarked Steve Karina, my Urban Planning Law professor, “favors the alienation of property.” Historically, restrictive covenants have served as the tools of the evil, as well as the ignorant, to preclude the moving of Negroes (or coloreds) into certain communities. However, ideally, community-oriented homeowners can regulate how future owners alter the home, or the lot, to help to maintain and to re-enforce the neighborhood’s social fabric. The law, however, favoring alienation, future (would-be) owners, oftener than not, can, in the name of this allegedly good fluidity of property, convince the courts to invalidate problematic restrictions, the common weal be damned. (I mean not to suggest that such covenants are always to the public’s benefit, even when the owner so intends, nor that some are not intentionally pernicious; moreover, I am cognizant of the need for nuance here, the new owner having, it would seem the same right to the sanctity of his property rights, just as the previous owner possessed.)
Further exacerbating the situation, we seem, in these post-productive property, rootless and “mobile” times, to see the greatest value of our private property in monetary value, in the capital gains we accrue from purchase to re-sale. This, I contend, is not inherently bad. However, the growth of the “flipping” industry should trouble us. Not a wholly bad profession (I worked, part-time, last summer, for a neighbor who partook in bit of this: He made a legitimate investment in a once attractive, falling-apart house in a struggling town, and did some amazing things.), it, still, ought to give us pause. Yes, just as everything else has become (even love, I imagine), homes are, in a sense, commodities, but to make them objects for buy-and-sell, rather than homes with a meaningful place in the community, ought to cause any true conservative (or communitarian of any stripe) to fear. The real estate industry, of course, proffers no help: In Kunstler‘s words
Here was a neat little semantic trick introduced by realtors as they became professionalized: The prospective buyer was encouraged to think of his purchase as a home, with all the powerful associations the word dredges up from the psyche’s nether regions; the seller was encouraged to think of it as a house, just a thing made of wood where the family happened to sleep and eat, nothing to be attached to. It was most emphatically not home. Home was where one was born and raised, a place in time called the past, gone forever. You can’t go home again. (The Geography of Nowhere, page 165; Kunstler’s emphasis in italics, mine in bold-face.)
I ask, once more, then: Who gives a damn about property rights? I do, but I think that I’m tilting at windmills: Meaningful — that is, productive — property is hard to find; truly significant home property is just as rare, held at the mercy of the mortgager. (Ask those at a loss thanks to Fannie and Freddie.) And so many homes, truly owned or held in mortgage, serve as little more than simple houses, commodities to be kept for a while, ’til the occasion to move, to uproot, arises, when the present owner can make a profit off the property and allow himself and his purchaser, both, to begin the cycle anew.
Filed under: Agribusiness, America, Conservatism, Culture, Distributism, Law, Supreme Court | Tagged: Common good, Community, Eminent Domain, James Howard Kunstler, Kelo, Private Property, Property Law, Wend, Wilhelm Röpke | 6 Comments »