All Commentary
Thursday, September 1, 1994

Property Rights, American Constitutionalism, and International Human Rights Law

Property Rights Are an Extension of Basic Human Rights

Mr. Walker is an attorney in private practice in Tallahassee, Florida.

As readers of this journal realize, property rights are not the rights of buildings and land, but the rights of humans to own, use, and dispose of property—tangible and intangible, real and personal. Over the last six decades, American courts have greatly diminished the judicial recognition of constitutional protection of property rights, though the Supreme Court in recent years has begun occasionally to “rediscover” those rights.

To no surprise, the ethereal world of international human rights law reflects America’s diminished appreciation and defense of property rights. One need only examine three of the primary documents of international human rights, and review recent American constitutional history, to recognize the low legal regard for property rights at the domestic and international levels.

Consider Article 21, paragraph I of the American Convention on Human Rights, born of the Organization of American States:

1.       Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.

At least paragraph 2 offers some minor comfort:

2.       No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest and in the cases and according to the forms established by law.

“The law may subordinate such use and enjoyment to the interest of society.” A rhetorical barrier such as the “interest of society,” “public utility,” or “social interest” is no barrier at all to government interference with property ownership; all a government entity need do is declare that a government “acquisition” of private property is done in the “interest of society,” and the victimized property owner is legally powerless.

Private Property Rights in America

Followers of the demise of constitutional protection of property rights in America understand this; at one time, private property was not to be taken by government unless for a “public,” as opposed to “private,” use. “Public use” historically implied such items as public roads, military installations, or buildings and land to be used by government to carry out its limited, enumerated duties. The U.S. Constitution is clear; as stated in the “takings clause” of the Fifth Amendment,” . . . nor shall private property be taken for public use without just compensation.”

Now labeled by scholar Richard Epstein as the “invisible” public use clause, the U.S. Supreme Court nearly erased the clause from the Constitution in the 1954 case of Berman v. Parker, an urban renewal case. In 1984, an allegedly “conservative” Supreme Court finished its mission of constitutional deletion in Hawaii Housing Authority v. Midkiff.[1]

At issue was a law which empowered land tenants to enlist the aid of the Hawaii Housing Authority to take by eminent domain the leased land owned by the Bishop Estate charitable trust, the ultimate purpose being that the tenants would then purchase land from the Authority. The Ninth Circuit Court of Appeals declared the law unconstitutional, stating, “We must decide whether the Federal Constitution permits a state to take the private property of A and transfer its ownership to B for his private use and benefit. It is our view that it was the intention of the framers of the Constitution and the fifth amendment that this form of majoritarian tyranny should not occur.”[2]

A unanimous Supreme Court disagreed and upheld the law.

Associate Justice Sandra Day O’Connor dismissed Contract Clause and due process attacks in a footnote. Focusing discussion on the Bishop Estate holding title to 9 percent of the land in Hawaii, she wrote, “The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii—a legitimate public purpose.”[3] By inference, one could conclude that private concentrated ownership is bad, but government concentrated ownership is good; the federal and state governments owned 49 percent of Hawaii land. Justice O’Connor’s opinion was silent regarding the percentage of government-owned land.

The government did not condemn the property in order to construct a government building, or to build a street, or for reason of military defense. The government interfered with private property rights solely to intervene in the private housing market, for the benefit of private citizens, contrary to the ownership rights of the landlord and the contractual relationships between the landlord and tenants. Justice O’Connor destroyed the public use requirement and substituted a “public purpose” requirement, stating that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.”

As a matter of constitutional law, the “public use” clause is a dead letter. It might as well be the “interest of society” clause in the American Convention on Human Rights.

(At least certain state constitutions are explicit, if jurisprudentially repugnant, in their language. For example, the Florida Constitution states that private property may be taken for a public purpose rather than use, thus the government’s legal power to take private property is acknowledged as legally legitimate for many more reasons than if only for public “use.”)

The United Nations versus Private Property

For an even more depressing look at the absence of property rights recognition at the international level, consider Article 17 of Universal Declaration of Human Rights, courtesy of the United Nations:

  1.       Everyone has the right to own property alone as well as in association with others.
  2.       No one shall be arbitrarily deprived of his property.

Wonderful. The government cannot take your property arbitrarily—that is if the government draws your name, deed, or title out of a hat. Otherwise, presumably, if the government has some desire for your property, and has some non-arbitrary procedure or protocol for taking the property, then the government gets your property.

Even more shocking, in the collective opinion of the United Nations the government should not be required to compensate you once it has your property. At least the “just compensation” constitutional requirement retains some life in American law—if you have a good enough legal team to assure that the government does justly compensate you.

(The much discussed Lucas case from the 1992 term of the Supreme Court revolved around the just compensation issue, and the sole ray of jurisprudential light from that case is that if a government regulation removes all viable economic value from a property, then the government must compensate the property owner. While the Lucas decision was a victory for property rights proponents within our constitutional system, the victory was but a successful skirmish.)

The Universal Declaration certainly is a product of twentieth-century minds, and more’s the pity. While certain rights, properly understood, are deemed worthy of protection, so is a laundry list of entitlements to other persons’ property via social security, public insurance schemes, ad infinitum—the usual “social” or welfare “rights.” As pointed out by Gottfried Dietze, any document produced to provide some sort of legal bridge among communist, capitalist, and social-democrat nations cannot contain strong provisions on behalf of private property; furthermore, the weak regard for private property “was due to the fact that Western democracies had become sympathetic to a social appreciation of property, whether they openly professed such a sympathy in international negotiations or not. No matter how gradually and imperceptibly it may have happened, a social conception of property has become so generally accepted by the so-called free societies that it constitutes a veritable ius gentium.”[4] American legislatures and courts began to severely diminish property rights in the 1930s and 1940s. It is no surprise that if America would not stand fast for the human right of property ownership, neither would the rest of the world.

The European Experience

But what of the European experience with regionalized international human rights? In the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, a product of the Council of Europe’s member nations, property is addressed as follows:

Article 1

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

“Public interest.” “In accordance with the general interest.” “Secure the payment of taxes or other contributions or penalties.” Again, we see a document which provides a slight acknowledgment of property ownership, and provides no shield against government encroachment upon the sphere of individual sovereignty made more robust by private property. Europe we need not look to.

Fortunately, neither the Universal Declaration nor the American Convention have any legal effect upon domestic American law. The Senate has not ratified either treaty, despite considerable legal-academic and “progressive” support for incorporating the provisions of these “human rights” documents into the framework of fundamental American law.

Still, the rhetorical surrender by successive American administrations regarding property rights as human rights reflects three generations of Americans living off their inherited philosophical capital with little understanding of what happens when the capital of property rights is exhausted by social engineers in the “interest of society.”

Proponents of “international human rights” and strong constitutionalism would do well to read the words of Canadian attorney and columnist Karen Selick, who recently addressed the topic of “property rights as human rights” quite elegantly:

In fact, property rights are the inevitable extensions of those most basic of human rights, the rights to life and liberty. If a person chooses to spend some of his precious time on earth converting his energy into property (i.e., working for a living), then depriving him of that property later is equivalent to retroactively depriving him of that portion of his life which he spent working. It’s like expropriating an entire chunk of his life. It’s like enslaving him.[5] []

  1.   Hawaii Housing Authority v, Midkiff , 467 U.S. 229 (1984).
  2.   Midkiff v. Tom, 702 F.2d 788, 798 (9th Cir. 1983).
  3.   467 U.S. at 241.
  4.   Gottfried Dietze, In Defense of Property (1975), p. 171.
  5.   Karen Selick, “Property Rights Are Human Rights, Too,” Canadian Lawyer (June/July, 1993), p. 46.