While you rarely hear about it in the news, property rights continues to be a popular issue for most Americans—so popular that enterprising policy makers and others in the public policy arena could use this often overlooked issue to significant effect.
“The sanctity of private property to Americans is well documented,” according to Janice Nadler and Shari Seidman Diamond of Northwestern University Law School and Matthew Patton, then a Ph.D. candidate at the University of Chicago, in a co-authored book chapter. As evidence, the authors cite public opinion polls going back to the 1970s that show strong support for property rights.
Americans continue to place a high, and apparently increasing, value on property rights. Over the past decade the Nature Conservancy conducted a number of public opinion polls that, among other things, asked Americans voters about their views on property rights because government environmental initiatives can have substantial impacts on property values and rights. The polls asked voters whether they thought “loss of property rights” was a serious issue. In 2004, 50 percent of voters thought it was a serious issue (and 30% thought it was extremely or very serious). By 2012, these percentages increased markedly: 65 percent of voters thought loss of property rights was a serious issue (and 39 percent thought it was extremely or very serious).
Regionally, very similar patterns are evident. A 2011 poll for the William and Flora Hewlett Foundation and Colorado College found 70 percent of voters in five western states (Colorado, Montana, New Mexico, Utah and Wyoming) thought “loss of property rights” was a serious problem (34 percent of whom thought it was extremely or very serious), while 23 percent thought it was not a problem and 8 percent did not know or respond.
Over the past two decades numerous polls have assessed more specific aspects of Americans’ view of property rights, one of which is the ability of government to use its power of eminent domain to condemn private property in order to sell it to another private party. Almost all of these polls were taken in the years following the Supreme Court’s infamous 2005 Kelo decision in which the court said it was legal for the city of New London, Connecticut to use eminent domain to force Susette Kelo to sell her house to the city so the city could then sell the land to private developers.
The problem with the Kelo decision stems from the property clause of the Fifth Amendment of the U.S. Constitution, which clearly states “nor shall private property be taken for public use without just compensation.” Yet in Kelo private property was taken for private use, not a true public use, such as a road, reservoir or military base. Numerous polls in the years after the Kelo decision found overwhelming opposition to government use of eminent domain to force the transfer property from one private owner to another (a good summary of these polls has been compiled by the Castle Coalition, a project of the Institute for Justice, the public interest law organization that argued the case before the Supreme Court for Susette Kelo).
Whereas eminent domain abuse is largely a municipal and state property rights problem, violations of property rights for environmental initiatives are especially egregious at the federal level. The two most prominent examples are the Clean Water Act, which regulates so-called “navigable waters” and “waters of the United States,” and the Endangered Species Act. Under these two laws the federal government can lock-up landowners’ property if it is deemed habitat for an endangered species (including suitable habitat that is unoccupied by species), and waters that are in no way navigable by a boat, such as ephemeral wetlands, puddles, and low-lying areas that accumulate water only when it rains. And while these landowners are still required to pay taxes on the locked-up land as if were not encumbered, they receive no compensation.
Given the basic unfairness of forcing unlucky landowners who harbor endangered species or have moist areas on their property to shoulder the entire cost for what is commonly thought of as a public good, it is not surprising that this is reflected in public opinion polls. A 1999 poll by two supporters of the Endangered Species Act, Paul Czech of the U.S. Fish and Wildlife Service and Paul Krausman of the University of Arizona, found that 56.5 percent of Americans agreed with the following statement; “Landowners prevented from developing their property because of endangered species laws should be paid for any lost income by the public.” By contrast, 36.5 percent disagreed and 7.0 percent had no opinion.
Similar response rates can also be found in other polls that asked Americans about compensation for land locked up due to endangered species, such as the 1992 and 1995 Times-Mirror National Environmental Forum Surveys. The 1992 survey also found a similar response rate when the issue was land devalued due to its classification as a wetland.
Savvy political operatives are well aware of the popularity of property rights and the peril for those perceived as anti-property rights. “If one ever lets the Republicans convince voters that either the Democrats or the environmental groups are anti-private property, then I think it could be a very dangerous issue,” Celinda Lake, a noted pollster, said in a 1996 article in The National Journal. “I think it’s one of the most serious issues that environmentalists should worry about because it is such a core value to people.” Indeed, “While 80 percent of Americans consider themselves environmentalists, Democratic pollster Celinda Lake said, more than two-thirds of Americans also believe there isn’t enough protection of property rights,” according to a 1994 story by John McQuaid in the Times-Picayune.
As is clear from public opinion polls and legal and political experts, property rights is a long-standing, popular issue for most Americans. The problem is that policy makers, especially at the federal level, have been reluctant to translate this into legislative action, especially “takings” legislation that would require the federal government to compensate landowners for private land and resources that are substantially devalued by federal regulations, such as for endangered species and wetlands, which in all fairness should be borne by the general public.
It is also equally clear that policy makers who purport to be pro-property rights have missed opportunities to use property rights advocacy to their advantage. If a strong majority of Americans can grasp the basic values of fairness, equality and good government inherent in protecting property rights, why can’t more politicians translate this into concrete action?