Principles, Propositions, and Property Rights

When an individual abandons principles he approaches each issue in isolation from other issues. He has no way to integrate or connect seemingly separate issues, and deals with each on a case-by-case basis. The resulting conclusions are often contradictory, as evidenced by two recent editorials in the Chronicle that take contradictory positions on property rights.

The first editorial supports Prop 9, which will strengthen the Texas Open Beaches Act (TOBA):

We believe strengthening and clarifying the laws relating to public access, as Proposition 9 would do, is both proper and necessary. As Texas Gulf Coast residents know all too well, Mother Nature can change the landscape of beaches abruptly. That is one of the acknowledged risks of building a vacation home on the sand. Granting a permanent public easement onto our beaches seems likely to avoid confrontation and confusion while ensuring the broadest possible access. In short, it is in the spirit of opening beaches that has been built in Texas over half a century.

TOBA--which I have previously addressed many times--allows the state to seize private property when storms or erosion shifts the beach. The justification for this brazen theft is "the public's" "right" to the beaches. The "risk" is not the action of Mother Nature, but the whims of the Texas Legislature.

The second editorial supports Prop 11, which will place limits on the use of eminent domain:

Preventing takings for economic motives is consistent with Texans' historically strong support for property rights. At the same time, it would not impede eminent domain takings for necessary purposes.

As I have previously written, the use of eminent domain to seize private property is wrong in principle, no matter the purpose. Indeed, the seizure of private property--whether through eminent domain, TOBA, or any other law--is morally wrong. (Of course, an individual who violates the rights of another person may properly be subject to such seizures as a form of punishment or to make restitution.) The Chronicle however, sees no connection between these issues, and cannot even take a consistent position on eminent domain.

The right to property is the right of use and disposal. Property rights sanction the use of material objects as the owner chooses, so long as he does not violate the mutual rights of others. If one makes an exception to this principle, declaring that property rights may be violated in some situations, one has abandoned the principle entirely. A "principle" with exceptions is not a principle, but a loose guideline that can be discarded on whim. And this is precisely the Chronicle's position.

Consider the editorial on eminent domain: The paper is opposed to seizure of private property for "economic motives", but is not opposed to such seizures when they are for "necessary purposes". But what is a "necessary purpose"? How will this be determined, and who will make such a determination? No answer is given.

Virtually anything can be declared a "necessary purpose" with enough rationalization and evasion. Building a rail line or widening a street could be considered a "necessary purpose". So could the redevelopment of a neighborhood, or the construction of a marina, or any number of "economic motives". A "necessary purpose" for one person may not be a "necessary purpose" for another. The person whose property is being seized certainly doesn't consider the intended use a "necessary purpose".

Having accepted the idea that private property may be seized in certain situations, the paper can only bicker that some purposes are "going too far" and some takings are "unfair":

In situations where economic development is the objective it is simple fairness to give property owners the benefits of choice, and of a marketplace sale. To force a sale upon them under such inflexible circumstances is inimical to constitutional principles enumerated in the takings clause. [emphasis added]

I agree that property owners should have a choice--to sell or not to sell. But why doesn't this also apply to beach front property owners or those forced to sell for "necessary purposes"? Why is it "simple fairness" (not to mention moral) to allow some property owners to dispose of their property as they choose, but other property owners are forced to sell? The Chronicle does not answer this question.

If the Chronicle, or anyone, wishes to defend property rights, it must do so consistently, completely, and without exception. If it believes that certain situations warrant the seizure of private property, it is defenseless when someone declares a particular purpose "necessary".

The motivation for the paper's contradictory positions is transparent. Both positions are popular with Texans. Many Texans have no problem seizing private property when they perceive some benefit--such as beach access--but they do not like the idea that their property might be seized for the benefit of someone else. (As a concrete example, see the contradictory position of the home owners opposing the Ashby High Rise.) They want their property rights protected, but are not willing to protect the mutual rights of others. What they, like the Chronicle, don't realize is that they cannot pick and choose when to apply a principle. Sadly, they might learn that lesson when it is too late.