American Lung Association Earns "F" in Liberty

Dear American Lung Association,

I am sorry to learn that your organization deserves an "F" in its understanding of liberty.

I was shocked to read in today's Denver Post that the ALA has endorsed the violation of property rights (via the smoking ban), higher taxes, and more state spending in Colorado.

While I approve of your organization's work to persuade people to quit smoking, in this case you are substituting the force of the state for rational argument. The ends do not justify the means, and you are promoting unjust policies that violate people's rights.

As harmful as smoking is, it is not nearly as harmful as a government that systematically violates property rights and economic liberty. By seeking to forcibly limit people's choices, you are preventing them from acting on their own judgment. The freedom to act on one's judgment, consistent with rights of property and person, is the bedrock of liberty and prosperity. If you take away people's ability to make mistakes, you necessarily undercut their ability to take responsibility for their lives and reach the heights of human potential.

The ALA should mind its proper business of persuading people to improve their health, not promote state policies that violate rights. It should go without saying that I do not donate to organizations that promote the violation of property rights and economic liberty.

Sincerely,
Ari Armstrong

Scott McInnis on Eminent Domain

In the comments to my recent post about Dan Maes, "Mike" reminded me about a proposal to expand military lands around Piñon Canyon.

Lynn Bartels writes for the December 10 Denver Post, "Republicans opposed to the military's Piñon Canyon expansion project are disappointed that property rights weren't addressed when party leaders unveiled a new platform and rallied around gubernatorial candidate Scott McInnis."

Here is how the Post's article summarizes the issue: "The Army wants to [expand] its 235,000-acre Piñon Canyon training maneuver area by almost 100,000 acres. The Army has promised to acquire the land only from a willing seller or through a long-term lease, but landowners in the impacted areas in southeastern Colorado fear their property will be seized, adversely-affected or the military will eventually want even more land."

It is important, then, to distinguish between expansion of the military lands and the use of eminent domain. Property rights do not always protect the owner from being "adversely affected." For instance, unless you live in an HOA that controls for such things, your neighbor might paint his house an ugly color, park ugly cars in front, and otherwise do things that incidentally reduce the value of your property. So we must limit the discussion to actual violations of property rights, such as the use of eminent domain to forcibly seize property from those unwilling to voluntarily sell it.

According to State Representative Steve King, McInnis said the government "is no longer threatening eminent domain in the Piñon Canyon expansion." Apparently, then, McInnis's support of the project assumed that eminent domain would not be used.

However, the Fifth Amendment states that private property may be taken for public use for just compensation. Do McInnis's critics wish to claim that government ought never use eminent domain, even though the Constitution explicitly authorizes it? That's my position, but I think McInnis's critics need to detail their views. If Republicans are going to beat up their candidates for considering eminent domain for an obviously public use, that's a high bar, and one that should be set intentionally rather than as a pretext for partisan attacks.

Another comment by McInnis on the matter is more troubling. According to the Post, McInnis said, "Balancing the deep need that Colorado has for quality jobs with the rights of Piñon Canyon property owners requires leadership and dialogue."

I believe that property rights should be consistently protected, not "balanced" against some alleged need to forcibly seize property for somebody else to use. I would be interested to learn if McInnis's Republican critics believe that eminent domain should be abolished across the board, or if they merely want to restrict the practice to somebody else's property.

In the meantime, it would be helpful if McInnis would further clarify his views on eminent domain and property rights.

No Property, No Freedom

I continue to enjoy Catherine Drinker Bowen's Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787. Following are just a couple of intriguing passages:

Stephen Hopkins, arguing from Rhode Island against the proposed stamp tax in the year 1764, had announced that "they who have no property can have no freedom." The famed Massachusetts Circular Letter of 1768 had declared it "an essential, unalterable Right, in nature... ever held sacred and irrevocable... that what a man has honestly acquired is absolutely his own." (page 71)

[Reflecting on George Washington's sentiments:] These meetings would determine whether America was to have a government which guaranteed life, liberty and property, or whether the country was to drift into anarchy, confusion and the dictation of "some aspiring demagogue." (page 77)

How far we have fallen.

Or, in the half-full interpretation, how great is our opportunity to renew our founding ideals!

ARC: Let Doctors Protect Conscience by Contract

A few days ago, I criticized efforts to force hospitals to abandon their faith-based practices, however much I disapprove of those practices. Now the snazzy new Ayn Rand Center for Individual Rights (ARC) has produced a release that aptly explains the reasons for my view. Thomas Bowden said:

[T]he law should recognize each individual's right to deal, or refuse to deal, with others on a voluntary basis.

For example, a doctor has the right to refuse an employment offer from a Catholic hospital that forbids contraceptives and abortions. But if he takes the job, he has no right to force the hospital to abandon its religious taboos and allow him to perform abortions. Likewise, a hospital has the right to hire only those doctors willing to prescribe contraception and provide abortions. If one of those doctors refuses to perform such services on moral grounds, he must take the contractual consequences.

Patients have the same rights as doctors and hospitals to set their own terms of trade. A pregnant woman contemplating abortion has the right to seek treatment at a hospital whose doctors are unencumbered by religious superstitions about ensoulment at conception. But if that hospital denies her admission, she has no right to demand that the Catholic hospital down the street abort her fetus.

The correct path out of the "conscience controversy" over abortions and contraceptives is not to adopt new regulations creating "provider conscience rights." The solution is for government to recognize and protect the individual rights of all participants in the health-care system. Doctors, hospitals, and patients should be allowed to deal with each other by voluntary agreement, with government's only role to enforce contracts and prevent fraud.

However, I would again point out that implicit contractual understanding could require patient notification. If I walk into a hospital, normally I expect to be offered the full range of medical information and treatment options. If a hospital refuses to offer some information or treatment on religious grounds, I need to know that. At least a hospital has an obligation to relate its relevant policies so that patients can make informed decisions.

Insecure Property Rights Brings Conflict

We allow local politicians to arbitrarily redefine property use, and then we wonder why this causes problems. Daniel J. Chacon writes for the Rocky Mountain News:

After a nearly 10-hour meeting that ended just after 3 a.m. today, the City Council approved a rezoning that will prevent the construction of duplexes and other multifamily dwellings in two northwest Denver neighborhoods.

The council voted 10-2 to rezone 53 acres in West Highland and 62 acres in Sloan’s Lake from R-2 to R-1, putting an end to so-called scrape-off redevelopments to make room for higher density multiple-unit properties.

Council members Charlie Brown and Jeanne Faatz voted in opposition. Though they raised several concerns with the proposal, both said the issue boiled down to property rights.

The dissenting council members are correct that arbitrarily changing property rules violates rights, but the fundamental problem is not the change in zoning but the zoning controls themselves. Arbitrarily zoning to allow higher density use is just as incompatible with property rights.

It is a sad state when, in America, people think they own their neighbors' property as well as their own. Yet that is the mentality manifest and propagated by zoning controls. Land ownership is to a significant degree a socialistic endeavor.

What is the alternative? The proper default position is that the first-in-time user acquires rights in the used property, but not in any adjacent property, except insofar as use of adjacent property interferes with the original use. For example, if you build a ranch in an open frontier, you have the right to own and operate the ranch, but you don't own the entire frontier or the open land not directly associated with the ranch. If somebody moves in next door, you have no right to control that property unless the new neighbor directly interferes with your operation of your ranch -- for instance, if your neighbor opens a plant that poisons your land.

First-in-time property allows for voluntary communal rights. For example, if you want to set up a commune on an open (or purchased) piece of property, compete with common ownership within the commune, you have that right. Though the language of a "private commune" is odd, it is apt in the sense that the commune is privately held by a particular group of people.

I live in a Homeowner's Association (HOA) in which all of the outdoor property is owned in common and use of indoor property is restricted by covenant. The sort of complex in which I live simply could not operate without such an arrangement (though it does fall into problems typical of collective ownership. I have speculated that federal housing policy drives such property away from an apartment model to a condominium model, but regardless HOAs are permissible in a free market).

If you want to maintain partial ownership rights over your neighbors' property, then you should buy into an HOA. Alternately, a group of neighbors could, by unanimous consent, create an HOA.

Aside from HOAs and conflicts of prior rights, you do not own your neighbor's property and should not have the ability to control it. Real property rights are not subject to majority rule or the whims of petty politicians.

Insecure property rights necessarily breeds conflict.

Chacon continues:

About 130 people testified at the two hearings, and at least twice that many showed up to listen. The huge turnout -- and the divisiveness of the issue -- prompted council members to call on sheriff’s deputies to keep a close eye on the hearings.

The zoning changes, which go into effect in January 2009, created ill feelings among divided neighbors. ...

Supporters said the increased density from the multiple-unit structures was ruining the character of the two neighborhoods, which are comprised of predominately single-family detached homes.

The outcropping of multifamily structures has cast shadows on gardens, increased traffic and created parking wars, among other quality of life issues, they said. ...

But opponents said the rezoning infringes on their property rights and would hobble the redevelopment they say has revitalized the neighborhoods.

Todd Silverman said he bought in the area 10 years ago for several reasons, including the "potential the zoning would afford."

It's unfair that now "certain people want to take away those property rights," he said.

Realtor Susan Pearce agreed. She also said the rezoning could lead to higher housing costs.

You do not own the roads (though someone should), and thus you do not own traffic rights. You have the right to park your car on any property that you own or rent, but not on property that does not belong to you.

The matter of sunlight access (similar to the matter of scenic views) is a trickier one. While it is conceivable that a new user could block another's sunlight in such a way as to significantly impede the original use, I have never heard of such a case. If you buy property in an urban setting, you're hardly counting on unimpeded sunlight for your livelihood. The notion that a partial "shadow" on one's garden may constitute a violation of property rights seems pretty silly. An HOA can properly control such things, but otherwise the owner should be able to determine use. Of course, you are welcome to purchase your neighbor's land -- or an easement on that land -- in order to preserve your views or prevent shadowing.

Defining property rights is no trivial matter, particularly when it involves such things as moving water and air. Yet property rights can be securely defined through objective laws and the courts. A mark of secure property rights is that they cannot be overturned by vote.

To a large degree, property rights have been subverted by zoning controls. The inevitable result is the sort of conflict and injustice seen in these Denver neighborhoods.

Tupa on Adverse Possession

State Senator Ron Tupa sent out an e-mail about a bill regarding adverse possession, the legal doctrine by which non-owners of land can claim ownership of the land after a certain length of use. Clearly such a doctrine has its place, but, equally clearly, it was abused in a recent Boulder case. From what I can tell, the bill that Tupa describes would provide a good corrective to the doctrine. Following are some of Tupa's remarks:

Most of you know that HB-1148 is a HOUSE bill that I am proudly carrying in the senate... my interest goes beyond simply correcting a glaring injustice... I would support the legislation in any case, but the Kirlin case which brought the issue to the public's attention also happened in my senate district (and Rep. Levy's house district) , so I feel somewhat more attached to the issue than most legislators...

Obviously, [adverse possession has] been around for hundreds of years and has worked well both in the past and present in the overwhelming majority of property / boundary disputes between parties... clearly, adverse possession has a place where (typically) one neighbor unwittingly used or encroached upon an adjacent neighbor's property for many years without objection and, once the error was discovered , a legal mechanism needed to be used to transfer the property from the title owner (the owner of record) to the owner who was actually in possession of the property and using it (in this case, the adverse possessor).... other instances abound where one property owner places a fence or other structure on what he/she thought was their property and used the land for years thinking it was their property only to find out many years later the fence or structure was, in fact, mistakenly placed on someone else's property, etc....

These types of cases or instances really don't rise to the level of public interest... no one gets angry when these types of title transfers occur... if mistakes are made, allowances address the mistakes... usually amicably...

The REAL PROBLEM the public takes issue with, and the reason for HB-1148, are instances where a neighbor or someone else (a trespasser) KNOWINGLY uses someone else's property for years (18 in our state) and can somehow gain title to the land... the law allows this... and if you delve into the history of adverse possession, the law in fact encourages this to happen... its based on theory that is now hundreds of years old, to "use it or lose it"... the whole idea was to encourage the cultivation/use/productivity of the land - and if the original / true property owner does not and YOU do, then you (the trespasser) should be awarded the land after 18 years of open and continual use (despite the fact that the land is someone else's)... some citizens have called this law "outdated" or "archaic"... back in the day, there may have been a good reason to do this.

In this day and age, however, when simply owning property is seen as a good thing - an investment that gains value over time - the whole idea of having to put it to use or be fearful it could be taken from you by someone else who will, is a foreign, if not truly outdated concept that most of the general public would disagree with...

As it passed out of the Senate Judiciary Committee yesterday, after July 1 of this year, HB-1148 will do 3 main things:

1. When satisfying the elements of a claim for adverse possession, it will RAISE THE BURDEN OF PROOF for the person asserting the adverse possession claim from a preponderance of the evidence to the higher clear and convincing standard... (I understand this higher standard was in place for many decades prior to a change in 1972... our bill just goes back to the higher standard...)

2. HB-1148 adds as an additional element in an adverse possession case, the requirement that the claimant (the adverse possessor) had a 'GOOD FAITH BELIEF' that they were the actual owner of the property... this is the most important change to law we are making, and should go a long way towards reducing the likelihood another Kirlin case will be repeated... 5 other states have a 'good faith' standard... Iowa, Georgia, Hawaii, Oregon, and Louisiana.

3. Finally, HB-1148 ALLOWS, but doesn't require, THE COURT TO AWARD COMPENSATION / DAMAGES to the losing party / owner of record for the loss of the property... the compensation may include a mixture of a percentage of the actual assessed value of the property lost as well as back taxes paid on the property...

The bill passed out of Senate Judiciary yesterday with unanimous support...I am hopeful it will have broad support in the full senate as well...

It looks to me like the legislature is doing the right thing in this case.