The Official Blog Of Edward Cline

Resurrecting an Essential Right

Here is a top-notch article by Tom McCaffrey, originally published by Canada Free Press.


The US Supreme Court has agreed to hear the case of the Colorado baker who
was forced, in

violation of his Christian beliefs, to bake a wedding cake for a
homosexual couple. The baker will argue that the state’s public accommodations
law violates his freedom of religion and his right to “free expression.” The
State of Colorado will argue that the baker’s refusal to accommodate the couple
because of their homosexuality constitutes a violation of the couples’ rights.

If someone went about hitting people over the head for religious reasons, he
would certainly be violating their rights. But anything less than the use of
physical force infringes no one’s rights. A baker’s refusal to make a wedding
cake for a couple, whatever his reason, is no more a violation of their rights
than if he refused to attend their wedding.

A statute like Colorado’s that requires a person to act contrary to his
religious beliefs does indeed violate his religious freedom. But freedom of
religion is not the proper grounds for the Supreme Court to disallow the
statute in question, because it is too narrow. An atheist might also find the
idea of homosexual marriage morally offensive, but the First Amendment’s
religious freedom clause would not be available to him.

Nor does it make sense to try to construe this case as a violation of the
baker’s “freedom of expression,” when there is a much more natural and logical
argument to be made that it is his property rights that have been violated. The
baker owns the bakery where he bakes his cakes. How he uses his property—and
whom he serves there—should be his business and no one else’s.

The problem with this argument, of course, and the reason the baker and his
lawyers are not employing it, is that it would upset a half century of civil
rights legislation and jurisprudence. Barry Goldwater voted against the Civil
Rights Act of 1964 because its Title II, which prohibited business owners from
discriminating against customers on the basis of “race, color, religion, or
national origin,” and its Title VII, which prohibited discrimination by
employers on the basis of “race, color, sex, religion, or national origin,”
constituted violations of the property rights of business owners and employers.
Goldwater was right, but he paid a price for it. The baseball player, Jackie
Robinson, called him “a hopeless captive of the lunatic, calculating right-wing
extremists.” Goldwater lost to Lyndon Johnson in a landslide that November.

It is not hard to see the roots of today’s political correctness in the
Goldwater episode. No politician today would dare question the rightness of the
Civil Rights Act of 1964. But our failure to defend the institution of private
property will be our undoing.

Property rights are the quintessential American right.

Property rights are the quintessential American right. More than freedom of
speech or freedom of religion, property rights are what made America the
country of individualism. All human endeavor requires land. All land is either
publicly owned or privately owned. On public land, what an individual may or
may not do must be decided collectively—by society or by the government. Only
when land is privately owned may the individual decide for himself how to use
it. Private land ownership is the foundation of individual rights.

Freedom of religion and freedom of speech are individual rights. The first
says the individual’s right to think as he chooses takes precedence over
whatever “the people” may want. The second does the same for his right to
communicate his thoughts. But both depend on the existence of property rights.
Try to imagine freedom of religion in a country where all the land and
buildings were publicly owned—this as America goes about banning religion from
public places; or imagine freedom of speech in a country in which the
government owned all the means of communication.

Property rights secure the individual’s freedom to act according to the
dictates of his own mind. Yet today we find ourselves in the curious position
of defending the individual’s rights to think for himself and to communicate
his thoughts freely, but of denying his right to act as wants. Instead, we
subordinate the individual’s right to use his property as he chooses to the
needs of society. We are losing touch with our individualist roots. We risk
losing a great deal more in the bargain.

America’s foundational principles of the rule of law and equality before the
law are premised on the primacy of the individual. Both embody the idea that
one’s family background, one’s race, one’s religion, or any other such
affiliations are irrelevant where the law is concerned; one stands before the
law not as a member of a group, but as an individual.

The NSA’s spying on Americans, although widely criticized as a violation of
their rights of privacy, was actually a violation of the property rights

The NSA’s spying on Americans, although widely criticized as a violation of
their rights of privacy, was actually a violation of the property rights of the
cell phone carriers who owned the phone records that the government was, in
effect, confiscating.

But nothing illustrates so clearly the precarious state of our freedom as
does the government’s takeover of one seventh of the private economy under the
aegis of Obamacare. Such an annihilation of the individual’s rights to look
after his own health, to contract with any doctor he chooses, or to forego the
purchase of health insurance altogether, would be unthinkable in a country with
a proper respect for property rights. (President Obama’s closing down of the
coal industry by executive fiat ranks a close second. And Attorney General Jeff
Sessions’s recent decision to expand the use of civil asset forfeiture, which
often involves confiscation of the property of persons convicted of no crime,
reminds us that the Democrats have no monopoly on the dismantling of our
property rights regime.)

Since the the 1960s, Americans have fought a losing battle to protect their
liberties from a burgeoning welfare state and an ever more intrusive regulatory
state. One reason we have been losing is that we have chosen to forego an
indispensable weapon in this battle, property rights. We cannot save this
republic without restoring the right of private property to its proper place in
our Constitution.

Tom McCaffrey is the author of Radical
by Nature: The Green Assault on Liberty, Property, and Prosperity

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1 Comment

  1. Edward Cline

    It’s a sad comment on today’s ‘land of the free’ that this excellent, probing and accurate article had to be published in Canada after being turned down in the USA. The Founding Fathers would have been appalled, just as Ayn Rand would have been, who wrote, “without property rights no other rights are possible”. My sincere compliments to Tom McCaffrey, please don’t give up! Nicholas Dykes, Herefordshire, England.

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