Without property rights, we drift further down “The Road to Serfdom”

March 21, 2024 | By BRITTANY HUNTER
Hayek Photo

This month marks 80 years since F. A. Hayek’s The Road to Serfdom was originally published in Britain. (An American edition was published six months afterward.) The book has since been translated into 20 languages and sold several million copies, making it not only Hayek’s most notable work, but also one of the foremost treatises of classical liberal thought.

One key classical liberal idea the Austrian author presents in his book is the sanctity of property rights. Specifically, Hayek points out that property rights are the glue that holds all other inalienable rights together, which is as true today as it was in 1944.

A little background

To fully appreciate the significance of the timing of The Road to Serfdom, it helps to understand the political and social climate in which it was written. The book was conceived against the backdrop of two devastating back-to-back wars—one in the not-so-distant past and the other ongoing—and a crippling global depression. With such widespread unease, Keynesian economics and socialism sneaked into society and made people false promises and gave them false hope. Hayek, a faculty member at the London School of Economics and an Anglophile, intended the book for an English audience.

But the creeping influence of Keynesianism and socialism were just as relevant to America as they were to Britain. Across the pond, classical liberalism was being suffocated by New Deal policies as political leaders sent a strong message that the country should prioritize the greater good and not the individual.

The first casualty of this collectivist philosophy: private property rights—an ideal with deep roots in both Britain and America respectively. After all, without Magna Carta or the works of British philosopher John Locke, America’s Founders would not have fought so hard to protect property.

It was during this ideological shift across the western world that Hayek penned the book as a warning of what was to come if we drifted further down the proverbial road to serfdom.

On property

Writing of property in the eighth chapter of his book, Hayek says: “What our generation has forgotten is that the system of private property is the most important guarantee of freedom…”

In this passage, Hayek is speaking directly to socialists and their call to seize and control the means of production—i.e., private property. But the meaning of this passage has a broader application than just the economic repercussions of a state-owned economy.

Property rights secure all other rights, as Hayek understood well.

Consider our enumerated rights in the United States Constitution. The 1st Amendment, among other protections, guarantees that on public property, the government cannot impinge on people’s right to freely assemble, express themselves, and worship how they please, and their right to freely associate with whomever they please.

But these safeguards are dependent on private property rights as well. Just as you can freely associate with whomever you please on public property, so are you also free to refuse to associate with anyone you choose on your own private property. For example, neither the government nor unwanted persons can assemble on your property without violating 1st Amendment protections.

A perfect example of this can be seen in PLF’s Supreme Court case Cedar Point Nursery v. Hassid.

This case challenged a California labor law that allowed agriculture unions to come on private property for up to three hours a day, 120 days a year to solicit membership. The law does not even require the union reps to alert property owners beforehand.

Early one morning during the business’s busiest season, dozens of union reps stormed Cedar Point Nursery armed with bullhorns and signs. They shouted and yelled and disrupted workers on a busy work day, which equates to a loss of money for the company, in addition to a disregard for property rights. Pacific Legal Foundation helped Cedar Point Nursery challenge the California law that sanctioned this behavior.

Every individual has the right to exclude this kind of unwanted intrusion on their own property. In this instance, the disregard for the right to exclude was also a violation of the 5th Amendment’s Takings Clause, which says that the government cannot take property for public use without just compensation.

Cedar Point Nursery was hijacked and occupied by unwanted visitors; we argued this constituted a government taking. The Supreme Court agreed.

Without making our argument about 1st Amendment rights at all, PLF’s property rights argument helped protect those rights by default. Therein lies the beauty of private property.

Beyond landownership

There is more to Hayek’s quote, which I intentionally saved for this next point. The property ownership component is easy to see in Cedar Point because it involves physical land ownership. But rest assured, owning land is not a prerequisite for property rights protections.

The rest of Hayek’s quote on property reads:

What our generation has forgotten is that the system of private property is the most important guarantee of freedom… not only for those who own property, but scarcely less for those who do not.

Property rights protections extend far beyond landownership and are likewise critical for defending Americans’ privacy in addition to their freedom of expression and assembly. Let’s look at the 4th Amendment, which promises:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What does this mean? It means that the government cannot conduct warrantless searches of, nor can it seize, property like your car, your purse, or even your pockets and anything it finds inside. And, as two PLF clients came to understand all too well, this protection of property also extends to your children.

Josh Sabey and Sarah Perkins were woken up in the middle of the night by pounding on the door. The police, along with child protection agency representatives, had come to take away their two young sons.

A day earlier, Sarah had taken their three-month-old son to the emergency room when she discovered his temperature was 103. After a series of tests, doctors noticed a healed rib fracture that neither Sarah nor Josh knew anything about.

Without any credible evidence whatsoever, hospital representatives and social services treated the Sabeys like criminals, forbidding them from leaving the hospital with their baby. They were eventually allowed to leave, only to have their children ripped from them in the middle of the night shortly thereafter.

The police had no warrant. Yet, they came into the home and took their children.

The Sabeys rented, rather than owned, their home, but the 4th Amendment says they still have the right to be protected against unreasonable seizures. This fact should have protected the Sabey family from this violation of private property. And that protection of private property also should have secured the 14th Amendment’s guarantee of due process. In this instance, disregarding the former of those rights made the latter vulnerable to government abuse.

PLF is currently helping the Sabey family sue the State of Massachusetts, where the incident occurred, for violating the 4th Amendment. By doing so, we are also defending the family’s right to due process.

Property rights protect all rights

Hayek’s wisdom is still very much alive today.

His belief that property rights are inseparable from all other rights has driven much of the work Pacific Legal Foundation has done over the past 51 years. In fact, during the last Supreme Court term alone, all three of the cases we brought before the Court, and subsequently won, were about property rights. And each case, like the ones above, were able to secure other rights through that protection.

The fight to protect private property will be ongoing, as will society’s inclination to drift further down the road to serfdom. Fortunately, individuals have Hayek’s immortal words to pull us back and PLF there to stand up for property rights and all the other liberties they protect.