Proposition 9 and the Alamo

Next week Texans will have an opportunity to defend property rights, and chances are quite high that they will refuse to do so. Proposition 9 will amend the state constitution to solidify the Texas Open Beaches Act (TOBA), which declares that all beach front property seaward of the vegetation line is "public property". TOBA has already robbed countless individuals of their property, and Proposition 9 will make it more difficult to rectify this gross injustice in the future.

Last Sunday the Chronicle reported on the proposition, stating:

[V]oters will decide whether the law's [TOBA] promise of beach access, which some folks already consider a Texan's birthright, should be part of the state's constitution. [emphasis added]

Rights sanction our freedom to act without interference from others; they do not grant us a claim to some object. To claim that open beaches are a "Texan's birthright" is to claim that some individuals--beach front property owners--must fulfill the desires of others. This is a negation of all rights.

Not content to merely pervert the meaning of "rights", for this is quite common, supporters of TOBA blame the victims for the state's seizure of private property. The comments left in response to the Chronicle article cited above illustrate this fact.

While the comments vary, they have a similar message: Beach front property owners know what the law is and have nobody to blame but themselves. If they are so foolish as to build on the beach, then they get exactly what they deserve when the state takes their property.

According to the Chronicle a number of law suits are pending against the state and its use of TOBA. The paper reports that Texas Land Commissioner Jerry Patterson, who is responsible for regulating beach access, evades any responsibility in the matter:

Patterson has countered that Mother Nature, not the state, is taking their properties.

Apparently Patterson believes that Mother Nature passed TOBA. Apparently Patterson believes Mother Nature shows up at the property owner's door with a gun, demanding that the "offending" house be demolished. If Patterson is correct, why are state officials even involved? It is not Mother Nature who threatens property owners, but Patterson.

Government's sole legitimate purpose is the protection of individual rights, including property rights--the right to own, use, and dispose of material objects. Our rights are inviolable. They are not subject to the whims of state officials or a vote of the citizenry. That a majority of Texans support armed robbery doesn't turn the act into a charitable donation, nor does it turn the desire for open beaches into a right.

When Texans go to vote next week, I urge them to consider a cry long associated with this state: "Remember the Alamo!" The brave men who fought and died in that battle were fighting for freedom from Santa Anna--a dictator who believed that he could dispose of the lives of others. Today, advocates of liberty are fighting an equally tyrannical idea--that the rights of the individual may be voted away.

Davy Crockett, one of the hero's of the Alamo, once said, ""A government big enough to give you everything you want is also big enough to take away everything you have." Supporters of TOBA want government to give them a fictitious "right" to open beaches by taking property from others. Today, it is the rights of beach front property owners that are at risk. Tomorrow, it may be their rights.

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.

A Private Beach is Threatened

While the Texas Open Beaches Act (TOBA) made land along the shore "public property", a small section of beach in Galveston has remained private property since the enactment of TOBA in 1959. According to the Chronicle:

The Legislature approved the act guaranteeing public access to Texas beaches about the same time that Henry Peter Porretto Jr. purchased a small plot used as a playground that was auctioned by the Galveston school district.

Porretto acquired adjacent properties to create the 27-acre Porretto Beach, which became a thriving enterprise and fixture on the Galveston beach front.

Unlike other owners of beach-front property, Porretto claimed that deeds issued when Texas was part of Mexico give him ownership of land extending from the seawall into the Gulf of Mexico, including what the Texas General Land Office says is public beach.

The state has challenged this claim, and in 2002 Porreto sued the state to recognize his property rights. In March a judge ruled that the state had taken the land without just compensation and awarded Porreto $6.8 million. The state is appealing that decision.

Land Commissioner Jerry Patterson claims that the judge bowed to "hometown pressure" and believes that a ruling in favor of the Porreto family (Henry Porreto died in 2007) would harm the state:

Patterson acknowledges that the Porretto family owns land near the Seawall but objects to their argument that their title extends to submerged land. They say Texas laws don't apply because the titles were granted before Texas became a state.

Patterson says if the family wins, other property owners with similar titles will assert ownership in the Gulf. “It's a domino effect,” Patterson said. “Everyone can trace a title back to Mexico or the Republic of Texas.”

Patterson--who is a Republican--stands adamantly opposed to property rights. I do not know if his argument holds water legally, but morally it is a travesty. The Porreto family has a moral claim to the property--they have used it, and I assume paid taxes on it, for 50 years. This doesn't matter to Patterson, who wants to use government force to seize the land because the "public" has a "right" to beach access.

Patterson is hardly alone in this perverted view of rights. The Chronicle tells of a Houstonian visiting the island:

The broad, uncrowded expanse of sand and water attracted Dwayne Milton to the Texas Gulf Coast's only privately owned beach, tucked between public beaches at the east end of the Galveston Seawall.

“It just looked a little bit nicer,” said Milton, 50, who brought his family from Houston to Galveston for a weekend at the beach.

Like many tourists, Milton didn't know Porretto Beach was private. Once informed, his opinion changed. “It shouldn't be privately owned,” said Milton, vowing to use the neighboring city-operated Stewart Beach next time even though the city charges a dollar more to park.

Mr. Milton found the beach nicer, but for some unnamed reason doesn't want individuals owning beaches. Apparently, he believes that if wants to visit the beach nobody should stop him--he has a "right" to visit the beach and others, namely taxpayers, must satisfy his desires. And if that also means stealing 27 acres, so be it.

It is bad enough when someone must spend $3.5 million (that is how much the Porretos have spent on legal fees) to defend their property rights. It is even worse when government officials are the cause of that expense. The government should be defending the Porreto family, not trying to rob them.

An Act of God, or TOBA?

Advocates of the Texas Open Beaches Act (TOBA) frequently defend the law by declaring that those who build on the beach are aware of the possibility that their land may some day be seized by the state. In an OpEd article in Saturday's Chronicle, real estate attorney Daryl Bailey writes:

[T]he exercise of such authority by the state is a far cry from when it is exercised to make way for development. In fact, it is the opposite, to prevent development of public areas that exist because of an act of God, not an act of the state.

Wikipedia describes an "act of God" as:

Act of God is a legal term for events outside of human control, such as sudden floods or other natural disasters, for which no one can be held responsible.

Bailey is referring to Hurricane Ike as an "act of God", but it wasn't Ike that wrote TOBA. While Ike may have changed the vegetation line, Ike did not mandate that land outside of that line is a "public beach".

In her essay "The Metaphysical Versus the Man-Made" Ayn Rand writes:

Any natural phenomenon, i.e., any event which occurs without human participation, is the metaphysically given, and could not have occurred differently or failed to occur; any phenomenon involving human action is the man-made, and could have been different.

An "act of God"--such as Hurricane Ike--is the metaphysically given; TOBA is the man-made. And it is TOBA that is responsible for the seizure of private property. In other words, while no individual is responsible for the devastation caused by Ike, the Texas Legislature is responsible for the devastation caused by TOBA. For Bailey to imply otherwise is intellectually dishonest.

In her article Ayn Rand goes on to write:

It is the metaphysically given that must be accepted: it cannot be changed. It is the man-made that must never be accepted uncritically: it must be judged, then accepted or rejected and changed when necessary. Man is not omniscient or infallible: he can make innocent errors through lack of knowledge, or he can lie, cheat and fake. The man-made may be a product of genius, perceptiveness, ingenuity—or it may be a product of stupidity, deception, malice, evil. One man may be right and everyone else wrong, or vice versa (or any numerical division in between).

As a man-made phenomenon, TOBA must be judged. Bailey would have us treat it as the metaphysically given--as an immutable fact that cannot be changed. It exists, and therefore it must be good. At the same time, he regards public access to beaches as a natural right, while simultaneously discarding the actual rights of property owners:

On one side of the eye is the right to public beaches — created by Ike’s fury. On the dirty side — some might say — are the rights of a few owners of private property who are trying to assert a new exemption from the 50-year-old Texas Open Beaches Act (TOBA).

Bailey's choice of words is quite revealing. Those who assert their property rights are on the "dirty side" (this is a reference to the northeast quadrant of a hurricane, which typically has the most rain and wind). Those who want to seize private property, we must conclude, are "clean". While such language is certainly "cute", it is nothing more than a smear against those who are angry that their property is being taken by the state.

Theft is theft, no matter how many people support it, whether it is done by private thugs or under the pretense of law. And theft is never clean. It is a violation of individual rights, and the perpetrator is not God, but the government.

That defenders of TOBA routinely argue that the victims were warned about the law demonstrates their callous disregard for individual rights and individual lives. While posturing as humanitarian guardians of "the public", they do not hesitate to destroy the lives of some of the individuals who constitute that public.

Their justification for trampling on individuals is altruism. They believe that the individual must place the welfare and interests of others before his own, that the "good of society" or the "public welfare" supersede any individual good. And who will determine the "public welfare"? The public, or their appointed spokesmen. This elevates "the public" above any principles; "the public" may do as it pleases with no constraints. If a few "dirty" individuals get hurt in the process, that's just too bad.

Ironically, while supporters of TOBA substitute society for God as the ultimate moral authority, they rely on an "act of God" to justify their brazen and heartless thievery. Their ethics are just as irrational as the most devout mystic, and the consequences are the same--the use of force as the means for dealing with others.

Neither TOBA nor any other statist policy can be defeated while clutching to altruism. Defenders of liberty must reject the premise that man's purpose for existence is to serve others. More importantly, they must defend the right of each individual to his own life, his own liberty, the pursuit of his own happiness, and his own property.

Making Galveston a Southern Belle

A story in Saturday's Chronicle reports that Galveston officials will consider a proposal to halt development on the island's west end and spend $1.1 billion to build 2,000 homes and repair another 17,000 homes. The proposal was submitted by a panel assembled by the Urban Land Institute.

The proposal calls for, among other things, creating "pedestrian friendly, self-contained neighborhoods" behind the seawall. One of the panel members said that Galveston could return to being the "Southern belle" of the United States if it adopted the plan.

While city officials consider this plan, residents on the west end of the island face the possibility of having their property seized by the state with no compensation. Adding insult to their injury, the city is now considering using their tax dollars to build homes for other citizens.

The city government should be defending the property rights of its citizens, including those on the west end. It should not be dictating where residents may build, nor should it be using tax money to build or repair homes. It should be protecting the moral right of each citizen to act according to his own judgment. While the prohibition on rebuilding on the west end of the island is a consequence of a state law--the Texas Open Beaches Act--a proper city government would be protesting this law.

Galveston suffered significant and serious damage during Hurricane Ike. Combined with the recession, the island is suffering. However, the solution to these ills is not restrictions on the actions of individuals. The solution is not massive government spending. The solution is more freedom--fewer controls, restrictions, and regulations.

The city wants to create jobs--remove restrictions on starting a business or expanding an existing business. The city wants more affordable housing--remove controls and regulations relating to building. The city wants to attract tourists--allow your citizens to be free, and they will find ways to use the city's resources to draw tourists. If Galveston wants to be the "Southern belle" it would be well-advised to begin by allowing its belles and beaux the freedom to act on their own judgment.

Texas Beaches and Property Rights: An Exemption

In a story filled with special deals, hypocrisy, and political intrigue, the Chronicle reports that Texas legislators have approved an exemption to the Texas Open Beaches Act (TOBA)--for one of their own. State Rep. Wayne Christian received an exemption to TOBA that will allow him to rebuild his home on Bolivar Peninsula.

The Texas Constitution prohibits bills that target a specific area of the state. Lawmakers sidestep this prohibition through a process called "bracketing"--they define the area without specifically naming it. The exemption, which was attached as an amendment to another bill, was carefully worded to apply only to Bolivar:

The amendment “brackets” Bolivar by saying that it applies to houses on a peninsula in a county with more than 250,000 population and less than 251,000 population. The only area fitting that description is Bolivar.

The sponsor of the amendment, Rep. Mike “Tuffy” Hamilton, R-Mauriceville, defended his actions:

Yes it does benefit (Christian), and I know it does, but I did it 99 percent for the benefit of my constituents.

Christian also denied any wrong doing:

If I were to pass a law that affected only Wayne Christian, that would be a conflict.

This is not an unethical, deceptive method of doing anything. This is the way it’s been ever since government was invented.

Contrary to what Christian thinks, such legislation is unethical. Many property owners on Galveston Island are in the same situation as Christian, yet the legislation provides them no relief. Instead, the state will use force to seize their property while Christian and his neighbors can rebuild. If it is proper for property owners on Bolivar to rebuild (which it is), it is equally proper for property owners on Galveston to rebuild.

Texas Land Commissioner Jerry Patterson, who is responsible for enforcing TOBA, has asked Gov. Rick Perry to veto the bill when it reaches his desk. Patterson has stated that he will not enforce the bill it is signed, and legislators will have to impeach him.

“I don’t think building houses on the beach, with the waters of the Gulf beneath them, is a good idea or good public policy,” Patterson said.

As I have previously argued, this isn't a decision for Patterson, or any other lawmaker to decide. This is a decision properly left to the property owners. And Patterson isn't content with legislators making arbitrary decisions--he wants to get in on the action too by unilaterally deciding which laws he will enforce and which he won't enforce.

Patterson's position would be admirable if he was refusing to enforce an unjust law. However, the exemption, while clearly reeking of political favoritism, does grant some measure of justice. It will provide some recognition of property rights to Bolivar property owners. While the rights of property owners on Galveston remain threatened, Patterson wishes to extend that threat to Bolivar.

Government's purpose is the protection of individual rights, including property rights. If Christian, Hamilton, and other legislators believe that Bolivar property owners have a right to rebuild on their property, then so do the property owners on Galveston. This is bad legislation, not so much because it grants an exemption, but because it doesn't go far enough.

Texas Beaches and Property Rights, Part 3

Those who defend the Texas Open Beaches Act (TOBA) offer several arguments to justify controlling or seizing private property. I have addressed the most common in the previous two days. The last argument I will address is nothing more than blatant paternalism.

When beachfront property owners questioned the justice of TOBA in the aftermath of Hurricane Ike, the author of TOBA--A.R. "Babe" Schwartz--told the Dallas Morning News:

We're talking about damn fools that have built houses on the edge of the sea for as long as man could remember and against every advice anyone has given.

Jim Blackburn, an environmental attorney and coastal expert based in Houston, echoed this sentiment:

We have to protect people from themselves and certainly from developers.

Both "Babe" and Blackburn believe that individuals should be prohibited from acting on their own judgment. Neither likes the decisions that others make, and they believe that they are justified to use force to prevent individuals from acting on those decisions.

If one accepts this premise, then every human activity is subject to government regulation and control. For example, sex can lead to unwanted pregnancies, which is certainly not good for those involved. Would "Babe" and Blackburn suggest that the government regulate sex to protect individuals from themselves?

The fact is, each individual has a moral right to act according to his own judgment, so long as he respects the mutual rights of others. He cannot compel others to act contrary to their judgment, just as they cannot compel him to act contrary to his.

But nannies like "Babe" and Blackburn do not like this. They provide any number of arguments to justify their position--such as public spending on infrastructure. But underlying their arguments is one motivation--power. They seek the power to control the lives of other individuals. They do not believe that individuals have a right to their own lives, liberty, property, or pursuit of happiness.

Morally, "Babe" and Blackburn believe that individuals should place the "public good" before their own interests and desires. More fundamentally, they believe that individuals should acquiesce to the judgment of others. They believe that the individual must be subservient to the group--both physically and intellectually. They believe that those who do not do so "voluntarily" may properly be forced to do so.

This November Texans will have an opportunity to reject these ideas when they vote to make TOBA a part of the state Constitution. Texans will have an opportunity to reject the idea that their lives belong to the state. It will be a small step, but it will be an important step.

Texas Beaches and Property Rights, Part 2

Following Hurricane Ike the Texas Land Commission announced that many beachfront homes were now sitting on "public property". The owners of those homes would be forced to cede their property to the state.

When the home owners complained about this injustice, defenders of the Texas Open Beaches Act (TOBA) responded that the home owners had been warned about this possibility. In other words, since the home owners have been warned that an injustice might occur, they have no reason to complain when that injustice does in fact transpire.

Defenders of TOBA also argue that tax dollars are used to provide infrastructure--such as roads, water, and sanitation--for the beachfront properties. Therefore, the argument goes, if "the public" must pay for such things, "the public" has a right to beach access.

This amounts to nothing more than using one violation of property rights to justify another violation of property rights. That is, since tax payers are compelled to finance infrastructure, it is justified to force beachfront property owners to cede their property to the state. There is no rational justification for this gross injustice.

The owners of beachfront property are as much a part of "the public" as anyone else. Yet, they are forced to play the role of sacrificial victims simply because of the consequences of a storm. They have not violated the rights of anyone, and yet they are now declared criminals.

The long term solution is to privatize the roads, water, and other infrastructure. If individuals wish to build along the ocean, they have a right to do so. They do not have a right to force others to pay for roads, sanitation, or repairing their homes. The state government should limit itself to its proper function--protecting individual rights. This applies to taxpayers as well as beachfront property owners.

Some may argue that because the shoreline has shifted, and some beachfront property is now underwater, that land should now revert to the state. But this ignores a principle in common law--riparian rights. According to Wikipedia:

Riparian rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. Riparian rights exist in many countries with a common law heritage, such as Canada, Australia, and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it.

Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.

While "reasonable use" is a vague term, it is generally taken that a riparian owner may not interfere with the right of other riparian owners to use their property. For example, one owner may not construct a dock that extends onto the property of another owner.

More importantly in the present context, it is often recognized that the owner of land adjacent to a waterway also owns the land under the water to the middle of the waterway. For example, the Michigan Supreme Court has recognized this principle as applying to both rivers and lakes (with the exception of the Great Lakes).

In general, this is an appropriate and just principle. However, I would argue that extending riparian rights to the middle of a large body of water (such as the Great Lakes or the oceans) is not proper. The owner of the adjacent property has no legitimate claim to the land miles from shore, unless he has taken action to enhance the value of that property. Exactly where the line should be drawn is not the issue here--the principle of recognizing and protecting property rights is.

Thus, even if the land owned by beachfront property owners is submerged by storms or erosion, riparian rights recognize ownership of that land. Use of that land may be more difficult and expensive, but that fact is not a legitimate concern of the state. The state's only proper role in this issue is to identify, define, and protect the rights of property owners.

Texas Beaches and Property Rights, Part 1

This November Texans will have an opportunity to express their support for property rights. An amendment to the Texas Constitution is on the ballot, and while the outcome is not likely to have any significant short-term impact, Texans can make a significant statement. Last week, legislators approved a ballot measure that will make public access to Texas beaches a part of the state Constitution.

Such access is currently guaranteed under the Texas Open Beaches Act (TOBA), which defines the area between the permanent vegetation line and the water as "public property". As a result, when storms and erosion move the vegetation line, private home owners can suddenly find themselves living on "public property" and they are forced to vacate their homes.

Supporters of TOBA claim that the public has a "right" to beach access. But they fail to explain the source of this alleged right, or why that "right" supersedes the rights of those who rightfully own the property. The web site for a group called the Texas Open Beach Advocates (TOBA II) tries to make an argument based on common law:

The late Bob Eckerdt saw what development, and the power of development money, could do to undermine the ability of the average citizen to enjoy this most basic and traditional right to some of the best of God's creation. He wrote the Texas Open Beaches Act. This was not a new law, but only served to codify what was already common law. In other words, the beaches were highways that the public used since "time immemorial." Nobody could block off the beaches or hinder access to them the same way landowners could not block access to a cattle trail, or other highway that the public had always used for trade, commerce, and transportation.

This might seem to be a reasonable argument. On the surface, it doesn't seem to differ from John Locke's identification of the source of property rights in The Second Treatise on Government:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left in it, he hath mixed his labour with, and joined it to something that is his own, and thereby makes it his property.

Mixing one's labor with material objects, according to Locke, gives that object value. An apple on an unowned tree is of no value until it is picked, and the individual who picks that apple gives it value by his labor. That apple becomes the picker's by virtue of his labor. The same holds true of any unowned property. The mineral resources of Mars, for example, are sitting there waiting for anyone who can use them. The individual who can figure out how to get those minerals owns them by virtue of his efforts.

Superficially, this is the argument put forth by TOBA II--"the public" has long made use of Texas beaches, and therefore, "the public" owns those beaches. But this argument fails on two counts.

First, there is no such entity as "the public". "The public", in this context, consists of all Texans. To say that all Texans own the beaches is to say that nobody owns the beaches.

Second, use alone is insufficient to claim ownership. Using a beach adds no value to it--a day of frolicking in the sand does not bring additional value to that beach. (Indeed, a consistent environmentalist would argue that the value of the beach has been degraded by man's use of it.) If use alone were a sufficient claim to ownership, then I could claim ownership of the golf course I play, or the store I patronize, or even the Internet.

The owners of beachfront property are the victims of a gross injustice. Texans can take a step towards rectifying that situation by rejecting the amendment.

A Fool and His Rights are Soon Parted

A recent article in the Houston Chronicle addressed the Texas Open Beaches Act (TOBA) which may be used to seize the property of land owners along the coast. (See my previous posts Texas Open Beaches Act, Part 2 and The Pen is Mightier than the Storm Surge for more details.) Reader comments to the article were overwhelming in favor of TOBA and expressed little sympathy for the property owners. A few excerpts:

Without the Texas Open Beaches Act, there would be virtually no access to beaches on Galveston's West End or other Texas barrier islands. It infuriates me that people who build on the beach believe they OWN the beach, and nobody else gets to use it.

It most likely also infuriates this person that someone OWNS a BMW or a home in River Oaks. How dare someone think that others can't use their automobile or their home. How dare someone work to achieve anything in life and then think that he has exclusive rights to it. It was precisely this prima donna attitude towards achievement and property rights that has created all of America's "ills"-- such as economic prosperity and individual freedom.

You have to draw a line somewheres. Vegetation line seems to be right.

The property line seems like a good place to me. That is much more objective and not subject to the whim of bureaucrats in Austin or the vagarities of nature. But we wouldn't want objectivity to enter into the discussion, because that would interfere with the desires of these beach lovers.

As it is, Texas does little enough to protect the right of the people of Texas to access to Gulf beaches. As has been said, anyone who builds close to the vegetation line knows what the risks are. It is much harder to be sorry for them than for all the people who took out loans they could not afford. The rights of the people of Texas are far greater than protecting a few from the consequences of their foolish choices.

I have posted before that statist policies that violate property rights are founded on the premise that the individual must sacrifice to the group. The above is more evidence of this. More interesting to me is the perverse attitude expressed. The writer feels sorry for people who were irresponsible and took out loans that they could not afford, but feels no sympathy for those whose property was destroyed by a storm. Further, the "people of Texas" is really nothing more than the individuals who live in the state. If the rights of individuals-- all individuals-- can be violated, then who is going to benefit?

The Open Beaches Act was originally drafted by wise men with foresight when old man Schlumberger built a home right on the beach in Galveston (if memory serves me right) impeding beach traffic and access. It was unconstitutional that beach access is ever denied to anyone.

I've read the Constitution lots of times and I can't find a clause that says anything about beach access. Perhaps it was in the 11th Amendment proposed after the ratification of the Constitution: "Congress shall make no laws restricting the free access to beaches, sun tans, and to the internet." I could see why that Amendment was not ratified, as undoubtedly the Founders were confused as to the meaning of "internet". But perhaps more importantly, they were principled defenders of property rights.

I must admit that I was a little surprised at the animosity and absolute lack of sympathy for the property owners. I am uncertain if that attitude is caused by ignorance of property rights or envy, but I suspect is a combination.

TOBA is what keeps Texas beaches from becoming like Cape Cod. We've got the Bush's, lord knows we don't need Kennedy's as well!

I agree that Texas doesn't need the Kennedy's, but I seriously doubt that the comment was aimed at their socialistic policies. It was aimed at the wealthy, and the Bush's and Kennedy's just happened to be easy names to attach.

The reader comments, almost without exception, missed the entire point. They opposed using tax dollars to rebuild the destroyed homes. I am opposed to that as well. The comments repeatedly stated that the property owners were fools and got what they deserved. In other words, since it is foolish to build on the beach, the state has a right to seize the property.

Building on the beach may be foolish-- I don't think it is, but that isn't the issue. The issue is the propriety of the State seizing property simply because the vegetation line moved. The issue is property rights.

Foolishness is not illegal, nor should it be. If it were, most people would be deemed criminals at some point in their lives. I think it is foolish to drive without a seat belt, drink to excess, or embrace socialistic ideas. But I would not begin to think to deprive someone of the right to make decisions for himself. I would not begin to think to force my values upon another person. I don't want it done to me.

Further, there is no right to beach access. A right pertains to action. It is a sanction to act without interference from others, so long as you respect their mutual right. To claim that one has a right to beach access is to demand that others provide that access, and if force is required so be it. To demand a "right" that is exercised at the point of a gun is worse than a contradiction-- it is a complete inversion of rights.

Those who would so willingly (and gleefully) sacrifice the rights of others seldom seem to realize that they are endorsing their own enslavement. If they do not defend individual rights (including property rights) as a matter of principle, they have no valid argument when someone else demands a violation of their rights. And this is precisely what modern politics has become.

It takes little more than a cursory examination of virtually any political issue to see that one group is demanding that the rights of others be violated. At the same time, others are seeking to violate the first group's rights. The political process is little more than a battle to violate the rights of others, all in the name of some alleged public good. In the end, nobody's rights are secure. In the end, a fool and his rights are soon parted.

The “Failure” of Capitalism

During the recent financial crisis, politicians on both sides of the aisle barraged us with claims that if Washington did not act quickly and decisively, the nation would face one of the most serious economic crises in its history. Politicians and pundits have chastised Wall Street for its greed, and claimed that the free market, i.e., capitalism, has failed. We have been told that greater oversight—which means, more regulation—is required.

Congressmen and Senators were deluged with phone calls and emails. Reportedly citizens were overwhelmingly opposed to the bailout plan passed by Congress. Yet, Congress ignored this opposition and passed the legislation by a wide margin.

The claims regarding capitalism and the actions of our political leaders are not new, nor are they limited to the recent turmoil in the financial markets. The same underlying ideas can be seen in regard to other issues, such as airport zoning, the Texas Open Beaches Act, and other infringements of property rights. Indeed, the same underlying ideas are present in every government intervention into the economy.

Sen. Dianne Feinstein captured the essence of Washington’s attitude. During the debate over the bailout bill, she stated that she had received 91,000 calls or emails regarding the bill, and 85,000 were opposed. Despite 93% of her constituents opposing the bill, she voted for it. She stated that “there is a great deal of confusion out there” and her constituents “don’t understand” the situation.

(Voting contrary to constituent’s wishes is not inherently wrong. Voting to protect individual freedom against the wishes of constituents is a good thing. The bailout bill however, violates individual rights on a massive scale.)

We could dismiss Feinstein’s remarks as those of an arrogant, career politician. While this is true, those remarks reveal the fundamental ideas that guide Feinstein and her intellectual brethren.

The essence of capitalism is the intransigent recognition and protection of individual rights, including property rights. A right pertains to action—it is a sanction to act without interference from others, so long as one respects the mutual rights of others. Rights do not guarantee that one’s actions will be successful, nor are they a claim to the products of other’s actions.

In a capitalist society, government is limited to the protection of individual rights. In such a society, an individual may not use force against others, just as others may not use force against him. In a capitalist society, every interaction between individuals is based on the voluntary consent of all involved.

This is not, and has not been, the case with our financial markets for a very long time. For decades, our financial markets have been heavily regulated and controlled by the government. The Federal Reserve, the Securities and Exchange Commission, the Justice Department, and a myriad other departments and agencies exert tremendous control over the financial markets. For example, the Justice Department under the Clinton Administration threatened mortgage companies with litigation if they did not begin extending loans to a greater number of applicants. The result was an explosion of sub-prime, i.e., risky, loans. Where the market deemed these loans as imprudent, the government forced businesses to extend them anyway, or face law suits.

The large number of defaults on these loans—which the private businesses had predicted, and thus, did not voluntarily make—caused banks and mortgage companies to face huge losses.

In other words, government mandates forced businesses to act contrary to their own judgment. Government compelled businesses to make risky loans under the threat of prosecution. This is not capitalism. When the recipients of those loans defaulted, the government stepped in. This is not capitalism.

That our financial markets are heavily regulated has not stopped politicians from decrying the failure of capitalism. This is not surprising, because to acknowledge government’s role would require intellectual honesty and undermine the ambitions of most politicians.

The premise underlying government regulations is that individuals must be protected from unscrupulous businesses. Left to their own devices, businesses would abuse consumers. Left to their own devices, consumers cannot understand the complexities of the market. Or, as Sen. Feinstein put it, “there is a great deal of confusion out there” and consumers “don’t understand”.

In other words, individuals are incapable of making decisions for themselves. Consequently, government must intercede, or as Jim Blackburn, an environmental attorney and coastal expert based in Houston said in a Houston Chronicle article: "We have to protect people from themselves and certainly from developers." And therefore, the government may properly restrict and control the actions of individuals.

But if individuals cannot make rational decisions, how will those individuals in government make rational decisions? Depending on the situation, those who put forth this argument offer two different justifications.

The most popular is to develop a consensus. In this scenario, opinions are solicited and some “common ground” is developed. Policies are then drafted that will appeal to a broad spectrum of people. If enough people agree, this view implies, then reality will somehow conform.

The second is rarely stated explicitly, but was implied by Sen. Feinstein. If constituents are “confused”, then our leaders must make decisions for us. They are privy to an understanding that escapes most people, and like Plato’s Philosopher Kings, they can properly relieve of us the need to think for ourself.

Regardless of the justification, interventions into the economy are aimed at controlling individuals. Through prescription and proscription such interventions prevent individuals from acting on their own judgment, and compel them to act in a manner dictated by law.

This true of zoning—individuals may not use their property as they choose, but only as permitted by zoning officials. This is true of occupational licensing—individuals may not offer or contract for services without government approval. This is true of minimum wage laws—individuals cannot offer or accept wages less than the government mandate. It is true of every government intervention into the economy.

Invariably, government mandates have unintended consequences. The recent problems in the mortgage markets are one example. In response, the government seeks more controls in an attempt to fix the problems previous controls created. And each time, they blame capitalism—i.e., the voluntary choices of individuals—as the culprit. However, only some individuals get the blame, while others get a free pass.

The problems in the sub-prime mortgage market are a case in point. The greed of individuals on Wall Street is blamed, and the individuals who took out loans that they could not afford are held blameless. Ignoring the fact that such transactions had two voluntary parties, the borrower is considered innocent. And the lender, who was forced into the transaction, is cast as a manipulative demon who must be shackled with further controls.

Absolving the borrowers of any culpability is consistent with the belief that individuals cannot make decisions for themselves. If individuals are incapable of rational decision making, then they cannot be held responsible for any decisions they happen to make. In short, individuals cannot choose for themselves, and when they are allowed to, we cannot hold them accountable. Unless of course, those individuals happen to be on Wall Street.

Those who attack the free market are attacking freedom. They are attacking the right of each individual to think and act for himself. They are attacking your right to life, liberty, and the pursuit of happiness. Disenchanted with the choices that individuals sometimes make, power lusting politicians and their supporters seek to eliminate individual choice. They believe that they have a right to impose their values upon you. And so long as you allow it, they will continue to do so.

Flooded with Money

Government intervention in the economy invariably leads to unintended consequences. Many times such interventions force individuals to act contrary to their own judgment, and they invariably seek ways around the intervention. At other times, such interventions encourage behavior that ultimately creates results not foreseen.The National Flood Insurance Program (NFIP) is one such intervention.

From the NFIP web site:

Before 1968, the federal government’s flood initiatives consisted of disaster relief to victims in the event of a flood, or flood control projects such as dams, levees and seawalls.

While well-intentioned, this approach did little to ease the financial burden of most flood victims. Worse, the public couldn’t buy flood coverage from most insurance companies, which regarded floods as too costly to insure.

Congress established the National Flood Insurance Program (NFIP) to address both the need for flood insurance and the need to lessen the devastating consequences of flooding. The goals of the program are twofold: to protect communities from potential flood damage through floodplain management, and to provide people with flood insurance.

What this means is that private insurers regard flood insurance as too risky, i.e., a bad investment. The lack of available flood insurance provided a disincentive to build in flood prone areas.

However, with NFIP that disincentive was removed. With taxpayer subsidized insurance available, it became less risky to build in flood plains. And with the risk removed, development boomed.

In other words, taxpayers are forced to support a program that encourages building in flood plains. And to make matters worse, taxpayers are then forced to pay for rebuilding and recovery efforts through FEMA and similar programs.

This is a classic example of the government intervening and providing a service below its market value. As always happens in such situations, demand increased. And that demand resulted in more beach front properties and the resulting expenses when devastating storms strike.

The solution is not more interventions. The solution is not prohibitions on building on beaches or other infringements of property rights. The solution is to get the government out of the insurance business.

If individuals wish to build on their beach property, they have a moral right to do so. They do not have a moral right to force others to subsidize their insurance or rebuild their home. If they can obtain insurance, or self-insure, the financial risk is entirely theirs (or their insurer's).

The reasonableness of building on the beach is open to debate. But that is a decision that should be left to the property owner based on his judgment. However, when the government provides subsidized insurance, the property owner is no longer required to act with the same level of responsibility. Taxpayers across the nation will shoulder a little of his responsibility, and thus encourage behavior than he might otherwise shun.

The government flooded the insurance market with taxpayer money and as a result a lot more homes get flooded.

Texas Open Beaches Act, Part 2

Sunday's Chronicle addresses the Texas Open Beaches Act and its possible application to areas devastated by Hurricane Ike. The debate has already begun as to what will and will not be allowed, though it may be a year before a final decision is made.

In the Chronicle article, Jim Blackburn, an environmental attorney and coastal expert based in Houston is quoted:

"We have to protect people from themselves and certainly from developers."

According to Mr. Blackburn, development should be restricted or prohibited because people might make bad decisions. The same could be said about consuming alcohol, eating red meat, driving, using the Internet, or come to think of it, any human activity. If protecting people from themselves is justification for prohibiting them from building on their property, then there is no limit as to which activities could be regulated.

Freedom means the right to act without coercion, so long as you respect the mutual rights of others. Freedom means the right to make bad, or even stupid, decisions.

Some argue that such restrictions are justified because these bad decisions impact others. But this is also true of virtually every decision we make. Again, those who posit such an argument are endorsing unrestricted government regulation of individual activities.

Jerry Patterson, the state's land commissioner

said his intent is not to trample on property rights, but to confront what he considers a crucial problem. In addition to the eroding shoreline, he is concerned that the high cost of rebuilding highways and pipelines and restoring beaches on barrier lands will become a perpetual burden on state taxpayers.

This entire issue would go away if the government got out of the infrastructure business. Simply privatize the land and the entire issue goes away. Those who own the land should pay for the infrastructure needed to support those areas.

This is the type of problem that arises when government acts beyond its legitimate functions. Each illegitimate action creates unforeseen problems, which lead to the need for further interventions.

The real issue is not whether anyone should build in areas impacted by hurricanes. The issue is the legitimate function of government. Government's proper function is the protection of individual rights, including property rights.

A right is a sanction to act without restriction. A right sanctions you to act according to your judgment, so long as you respect the mutual rights of others to act according to their judgment. You cannot force others to act in accordance with your judgment, just as they cannot force you to act in accordance with theirs. Government's sole function is the protection of this right.

When government moves beyond this function, it invariably imposes the judgments of some upon others. Such actions require some individuals to act contrary to their judgment, or as Mr. Blackburn puts it, "to protect people from themselves". Not only is this arrogant, it is immoral.

Mr. Blackburn, and others who support the Texas Open Beaches Act may not like the decisions many people make. He has every right to disagree, but he has no right to impose his views on others. That is the meaning of freedom.

The Pen is Mightier than the Storm Surge

If you have seen photos of the Texas coast after Hurricane Ike, you are aware of the the destruction caused by the storm. Thousands of homes were seriously damaged or destroyed, and many will be prohibited from rebuilding. And the owners of many of the homes that survived Ike may be prohibited from occupying their property.

The Dallas Morning News reports that the State of Texas may seize hundreds of properties, including homes that survived the storm, under the Texas Open Beaches Act (TOBA):

Hundreds of people whose beachfront homes were wrecked by Hurricane Ike may be barred from rebuilding under a little-noticed Texas law. And even those whose houses were spared could end up seeing them condemned by the state.

Now here's the saltwater in the wound: It could be a year before the state tells these homeowners what they may or may not do.

Worse, if these homeowners do lose their beachfront property, they may get nothing in compensation from the state.

What this means is that what Hurricane Ike could not accomplish will be done with a stroke of the lawmaker's pen. The 1959 law proclaims that the beach between the normal high tide and the normal low tide is public property and it is illegal to build private homes on public property.

The law is typically enforced after a large storm moves the shoreline, but it can also be invoked after gradual erosion does the same thing. Regardless, the owner loses his property and receives no compensation.

The author of the law expressed no sympathy for the victims of this land grab.

"We're talking about damn fools that have built houses on the edge of the sea for as long as man could remember and against every advice anyone has given," A.R. "Babe" Schwartz said.

According to "Babe", since these property owners did something foolish (which is debatable) then the state has every right to seize their property. But who determines what is foolish? And why do foolish actions give the state the right to seize the property? "Babe" offered no explanation. Foolishness is not illegal, nor should it be so.

"Babe" attempts to justify his law:

Every one of them was warned of that in their earnest money contract, in the deed they received, in the title policy they bought," he said. "And whether you like it or not, neither the Constitution of the United States nor the state of Texas nor any law permits you to have a structure on state-owned property that's subject to the flow of the tide.

That may be true, but it does not justify condemning private property and seizing it for the state. More significantly, "Babe" uses the law to justify itself-- private structures cannot be built on public land, and since the beach is public land, the law is proper. This is nothing more than a circular argument.

The proper purpose of government is the protection of individual rights, including property rights. As a part of that function, government must define how property rights are established-- as it properly did in the Homesteading Act. TOBA defines property rights out of existence.

The premise behind TOBA is that the public has a right to beach access. To secure this "right" a certain portion of the beach was declared public property and accessible to all.

The web site for Texas Open Beach Advocates defends the law because it protects a "basic and traditional right to some of the best of God's creation". No explanation is offered as to the source of this "right". Apparently we are supposed to just know.

The truth is, there is no such right. A right pertains to action. A right is the freedom to take action in the pursuit of one's values. A right is not a guarantee that one's actions will be successful, or that one will attain the object of one's desires. The mutual rights of others prohibits us from pursuing or attaining our values through the use of force.

The TOBA crowd believes that their desires constitute a right. They believe that if they desire something-- such as open beaches-- then others must provide that something. And all they need is some politician eager to win votes to accomplish their goal. All they need is someone willing to use a pen to accomplish what the storm surge couldn't.