Property rights–or property permissions?

Author: Timothy Sandefur

The cover story of October’s Liberty magazine, now online here, is my article about several of PLF’s lawsuits involving the problem of “exactions.” Exactions are demands that the government makes on you when you request a building permit. Local goverments routinely demand that property owners give up land, or money, or even in one case the right to vote, in exchange for such permits. Back in 1987, in a case called Nollan v. California Coastal Commission, the U.S. Supreme Court explained that local officials cannot use their permit power as an opportunity to extort these rights from citizens, but local governments routinely ignore the Nollan limits, and the reason is pretty obvious: by forcing individual property owners to give up money or land to the government, bureaucrats are able to provide the public with public services without having to pay for them with tax money. They can shift those costs to politically powerless minorities instead.

But there’s also an important philosophical dispute involved. As I write in the article,

If private property is a basic human right, then it pre-exists the state, and government bears the burden of justifying the limits that it imposes on an owner’s freedom to use what belongs to him. But if property is created by government’s decision not to interfere, then the owner must obtain that permission by yielding other rights…. The central problem is the shift away from the Founders’ classical liberal view of natural, human rights and toward the Progressives’ view that rights are permissions based on political consensus. With that shift came a gradual change in the nature of land-use regulation; originally a mechanism for preventing nuisances, land-use planning morphed into a device for centralized social planning.

The Progressive era shift on political philosophy taught Americans to believe that they have a fundamental right to tell other people what to do with their property. Until we abandon that heresy, and return to our original creed, that every person has the right to freedom, so long as they respect the same right in others, private property rights will be at risk from exactions and other government schemes.