History

Government has regulated private property in America for more than 300 years. All colonized land began as Crown property that was parceled out to individuals and groups who found favor. No explorer ever splashed ashore claiming land “for me, John Smith, Upper Whampton, Cheshire.” There never was a time in which a right to any land in the American colonies stood in opposition to the interest of the state as a general precept.

Later, the Revolution did not change things much, either. The legal traditions that the framers took with them into the Constitutional Convention in Philadelphia where extension of, not breaks with, deeply rooted English practices.

So what is the true genius of our form of governance? Well, it’s not a rawboned liberty to do as we please. It’s our concept of freedom under law. In our tradition, there is nothing of the freedom of the fox in the henhouse.

Jefferson’s “inalienable rights” and the Bill of Rights with in the Fifth Amendment property protections were advanced to shield us from capricious governmental power. But they were never meant to absolve us from political, legal, or community responsibility to each other for the public good. If that were the case then the rest of the Declaration of Independence and the Constitution would be nonsense.

The foundation of American liberty is the belief that people when they are free also choose wisely and well when what they do affects others – like exercising property rights. But this country was not founded on crossed fingers hoping for the best. The drafters of the Constitution knew the all too human tendency to choose badly at the expense of others. So, they empowered us to make laws to guide and inform decision making and to restrain us when we cross the line by failing to exercise good judgment.

We were meant to be self governed people, not an ungoverned people, even when it came to property. No one has the right to wreck a neighbor’s setting, a block, or a neighborhood. Our profound attachment to liberty assumes we all understand this. Laws are made fully for those who do not understand. It is the rule of law that protects the freedom of the rest from the irresponsible action of the few.
The enemy of liberty is not law or government but the argument that people are by right uncontrollable.