Why property rights are necessary if freedoms of religion, expression, and association are to mean something
In a recent post, I had occasion to refer to James Madison’s wonderful essay simply called “Property“, which explores the relationship between property and other rights. Madison’s point is that it makes sense to think of the freedom of opinion and religion, of the right to personal safety and of the liberty of occupation and commerce as forms of property, in a broad sense. Hence,
the praise of affording a just securing to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property
― and the same goes for governments that do not respect other rights too.
But the relationship goes the other way too. I don’t think Madison would have disagreed with this. But the BC Civil Liberties Association, alas, does seem to disagree:
This is badly confused. Because my tweet pointing that out became unusually popular, but also provoked a handful of equally confused responses, it may be worth a brief post, if only for the benefit of readers who haven’t seen it. If you have in fact seen the tweet, you won’t miss a great deal by skipping this post.
People who care about civil liberties should not denigrate property rights, let alone deny them as mere “claims” as if they were mere ipse dixit. A moment’s reflection shows that secure property rights are a necessary foundation for many other rights, and in particular for those which section 2 of the Canadian Charter of Rights and Liberties identifies as “fundamental freedoms”. That includes being able to assert property rights against protestors. Consider:
- You can’t have religious freedom if people are free to walk into your place of worship and disrupt your prayers and ceremonies, let alone if they are free to occupy it and preach their own religious tenets or demonstrate against the opium of the people. For that matter, you cannot have religious freedom if zoning laws prevent you from building a place of worship at all.
- You can’t have freedom of expression if you are not allowed to buy a printing press or a website, or if the premises where you are holding an editorial meeting can be invaded by a bunch of people to protest that you are peddling fake news.
- You can’t have freedom of association if you aren’t able to hold a club ― or a union ― meeting without people barging in to scream at you that you are a bench of fascists, or communists, or groomers, or whatever.
This ought to be pretty obvious and uncontroversial. Perhaps the iconic, if not the foundational, civil liberties case in Canada is Switzman v Elbling, [1957] SCR 285, which struck down Quebec’s infamous “Padlock Law”. That statute allowed the government to “order the closing” of any premises used “to propagate communism or bolshevism by any means whatsoever”. The substantive purpose of the law, then was censorship. But the means chosen to achieve this aim were interference with property rights.
You’d think the BCCLA would understand this. But perhaps they don’t, in which case there’s a way to explain. Just hold a protest at their premises, and see how they like that. They are, after all, presumably organized as a corporation themselves. A non-profit one, of course, but so are universities, which the BCCLA seems to think can’t assert their property rights against protestors.
Now, there are at least arguable exceptions to the general principle here; one can argue that property rights, like other rights, have to be qualified. The clearest one ― if increasingly quaint ― is the company town where the is simply nowhere else to go but on private property, and indeed on the property of one and the same owner. There are cases extending this reasoning to shopping malls, and some people are trying to apply it to social media as well. While I think that is wrong, the argument is an intelligible one, because ― and so long as ― it relies on some plausible claim that the owner is a monopolist whose unavoidability in civil life makes it right to burden it with the same restrictions on its property rights that we normally impose on governments. Embracing this type of argument doesn’t require you to deny the existence of property rights or their necessity in general to make fundamental freedoms meaningful.
Yet such denials were most what little I got by way of pushback. There were claims to the effect that property rights aren’t constitutional rights in Canada, or indeed that they are not (to be confused with) human rights at all. And, inevitably I guess, there was that old chestnut about property right being, supposedly, the purported justification for the discrimination the civil rights movement, and Rosa Parks in particular, fought against.
Let’s deal with that first. It’s simply ignorant. The buses of Montgomery were segregated by law, not by the whim of a private operator; that law was eventually struck down in Browder v Gayle, 142 F Supp 707 (Dist. Court, MD Alabama 1956). That’s not a surprise, either. The infamous “separate but equal” case, Plessy v Ferguson, 163 U.S. 537 (1896), was a set-up ― the railway company no more wanted to comply with the law that forced it to segregate its carriages than did Mr. Plessy, and hoped that it would be struck down. Alas. As Gary Becker long ago argued, discrimination is costly for the discriminator, as well as for the victim. That’s not to say there are no property owners willing to indulge themselves even at a cost, but that’s not as widespread an issue as the people who want to increase state power and deny the value of property rights want us to believe.
The other claims aren’t a great deal better. That property rights aren’t constitutionally protected in Canada is true, of course ― but rather less important than the people who rely on that seem to think. For one thing, it’s worth noting that the non-inclusion of property rights in the Charter is happenstance as much as grand design, as Dwight Newman and Lorelle Binnion have shown. For another, positive law cannot disprove the point of principle that I was making: that property rights aren’t constitutionally protected in Canada simply doesn’t mean that they aren’t necessary for other rights to be realized. Failure to protect them is one of the Canadian constitution’s many shortcomings.
But even if positive law is all you care about, things are quite so simple as saying that the Charter doesn’t protect property rights. Section 26 of the Charter provides that “[t]he guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”. These “other rights” ― that is, rights left out of the Charter ― obviously include property rights, whose existence is acknowledged (for federal purposes) in the Canadian Bill of Rights, in provincial legislation, and in the common law, not just property law as such but also cases like Wells v Newfoundland, [1999] 3 SCR 199, which affirm the presumption against expropriation without compensation. So even if they are not protected against infringing legislation, property rights aren’t a thing alien to Canadian law. Indeed, as I have suggested here in discussing the religious freedom aspect of Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 SCR 386, and as my friend Asher Honickman observed on Twitter, property rights may, in appropriate cases, factor into the analysis of the rights protected by the Charter and of what limitations on these rights can be “demonstrably justified in a free and democratic society” under section 1.
As for the suggestion that property rights aren’t human rights at all, the drafters of the Universal Declaration of Human Rights would beg to differ. Its Article 17 provides that “[e]veryone has the right to own property alone as well as in association with others” and further that “[n]o one shall be arbitrarily deprived of his property”. Now, I don’t think the Declaration necessarily makes the things it asserts true, but it is, if nothing else, an indication of broad international consensus. Property rights are pretty central to the natural law tradition too ― whether in its more religious or secular forms. That Canada, and some other countries, have chosen to give effect to this right through ordinary rather than constitutional law, whether rightly or wrongly, does not mean it is less of a right.
To repeat, I’m confident that the people who pose as utterly unconcerned about property rights would be quite upset if government decided to take some of their stuff and give it to other people for funsies ― or, say, to reward friends and punish enemies. Indeed, they often are upset, sometimes rightly, when government already does just that. Just the other day, Reason reported on a lawsuit by the Institute of Justice that “accuses Indiana law enforcement of seizing millions of dollars a year in cash from FedEx packages without ever informing owners of what crime they’re suspected of violating”. Unless you think there’s nothing wrong with what Indiana’s finest are alleged to have done, you believe in property rights. And nobody thinks that.
Why, then, were some people (I am happy to say it’s not very many), so upset when I pointed to the necessity of property rights for fundamental liberties? I suspect there are two distinct reasons, though they can overlap for any given person. Some people think that property, and anything else having to do with money, is grubby if not filthy, best not spoken of, and certainly best not mentioned as a necessary precondition for the high-minded stuff they believe in. I think that’s a shame, because this sort of naïve idealism leaves them vulnerable to being swindled by the specious promises of political rogues who would start out as democratic socialists and end as Chavistas. And some people, I am afraid, are all too happy to flip the old fascist motto on its head and say “for my friends, the law; for my enemies, nothing”. It’s property rights for them and theirs, and mob takeovers for everyone else. The idea, of course, is not new. But I do wish they didn’t call themselves defenders of civil liberties.
