Tuesday, October 18, 2005

Black and White Is So Much Easier Than Grays

I think Thomas Sowell may be one of the most brilliant people in America--he's surely among the most brilliant columnists. I say that not because I usually agree with him (although I'll admit people sharing my views tends to give me a favorable opinion of their intelligence!), but because I've so often, while reading his always reasonable columns, said to myself, "I've never thought of that before, but he's right."

But I'm not sure about something of his I just read (it's five days old but I just read it today), in which he lumped "growing legal restrictions on building anything that existing residents in a community don't want built" in with the "spoiled brat politics" that thinks anything we personally want automatically overrides what other people want.

At one time, courts took seriously the 14th Amendment's
guarantee of equal rights for all, regardless of where they lived and voted.
Courts even enforced the 5th Amendment's guarantee of property rights.

In other words, local voters and local politicians
could not arbitrarily deprive other people of the right to come in and buy and
use property as they saw fit, simply because some planning consultants or
planning commissions preferred that they do otherwise. But Constitutional
protection of property rights is no longer "in the mainstream" of fashionable
legal thinking. ...

The only way the government can give current
residents such a guarantee [that their neighborhood will never change] is
to take away other people's property rights, which exist precisely in order to
keep politicians at bay. [Source]

I agree, mostly--property rights are very important, and I'm sure we've all read news stories about people having their property rights infringed upon by government that made us angry, and surely noone wants government to have the power to seize any property it wants and reserve to government agencies the sole right to determine that property's use--and yet shouldn't local people have some say over how their neighborhood or town is developed? Most people don't want a strip club built between the public elementary school and a popular day care center, even if the club owner does own the land it's to be built on. Shouldn't neighborhood residents be able to veto a pornographic book shop in their neighborhood? What about a toxic waste dump or even an ordinary garbage dump? What if a majority of people in a town had rather have small shops clustered in a downtown area, rather than having one big, less centrally-located mall--can't they make local policies that encourage what they want and discourage or forbid what they don't?

I'm not talking about a small minority trying to inflict its will upon the whole neighborhood or town; I'm wondering about cases where the majority want something--should they have no say?

We allow restrictions to be placed on property for public safety (even though I own it, I'm not allowed to burn my own house down on a whim, for fear of setting the neighbors' houses on fire; I'm not allowed to pile raw sewage in my yard no matter how much I may want to, factories aren't allowed to dump waste products even on their own land, etc.), and we zone areas for residences or businesses; industrial areas may even be separately zoned from other businesses. Is it really going that much further for a majority of townsmen to vote that they don't want a particular kind of property development in their area?

This is a hard thing to determine. I think we can all agree that when someone wants to do something on his property that will clearly endanger the lives or health of the people nearby, then those people should have some say over whether the property owner gets to do that thing. But when it comes to property uses that aren't physically dangerous, it gets gray very quickly.

It seems either side is open to abuse. Under a system where we usually decide for the individual property owner's right to do whatever he wants, you could get, say, the sex toys shop in an area where most residents don't want anything like that. But under a system where we allow town or neighborhood planning commissions a great deal of leeway we could get people whimsically forbidding anything for any reason. It's not hard to imagine the freedom of small groups or individuals getting trampled under such a system, even if the planning commissions remained faithful to what a majority of locals wanted. Add in the probability of planning commissions representing, not the will of the majority, but the will of a small elite, and I'm much less sure I want them to be able to decide what property owners can do with their property; the will of a majority of residents is one thing, but the will of a tiny group of "experts" pretending to represent the will of the majority is quite another thing.

And this is not even getting into the will of the most directly affected versus the will of the somewhat less close-by people. For example, I read an article a good while back about Wal-Mart wanting to build a store in a "nice" neighborhood somewhere. Many people in the "nice" neighborhood were deadset against having a Wal-Mart in their neighborhood, but people in the surrounding, "less nice" neighborhoods were mostly for it; the former didn't want increased traffic in their nice area and were worried about "not nice" people coming into their neighborhood to shop, while the latter were eager for low prices and like the possibility of new jobs. Much as the "nice" people's snobby attitudes set my American populist hackles rising and make it hard to sympathise with the most directly affected neighborhood, shouldn't they have some say in what happens to their neighborhood? But then what about the larger area, who did want the Wal-Mart? Like I said, it gets gray quickly.

Thomas Sowell is probably right, and we should err toward protecting property rights when there's conflict; I certainly don't want there to be less respect for them than we have now, when the government can use public domain to seize your property, not just to build a publically necessary highway or dam, but to build a baseball field. But that doesn't mean it won't sometimes be hard to look at the outcome of some of those conflicts and think that the majority of residents got screwed over by the property owner.

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