Actual property rights don’t depend on whether they are exercised by or against people one likes
Back in August, I wrote here about the importance of property rights as the necessary foundation for other rights, especially those that the Canadian Charter of Rights and Freedoms describes as “fundamental freedoms”: i.e. those of religion, expression, and association. That post was in response to a tweet by the BC Civil Liberties Association (BCCLA) that seemed to deny the validity of property rights of “corporations and universities” in the name of accommodating protesters. Eventually, the BCCLA responded to my post. I welcomed the engagement and meant to respond in turn. I got sidetracked, as usual, but here goes, at last. There are some important points on which the BCCLA and I agree, and others on which their position remains worrying.
The BCCLA disclaims any belief “that property rights somehow aren’t real or legitimate”. Very good. They point to their “previous work … on civil forfeiture … [o]r … on municipalities seizing or destroying the belongings of unhoused people“. While the “unhoused” language, suggesting someone has a duty to provide housing to people, strikes me as an invitation to further interfere with actual property rights, let me note that the general point that the government often interferes with the property rights of the poor and the marginalized is well taken, and unfortunately important. Even more generally, violations of property rights often occur at the expense of the less well-off (whether or not they are poor) and for the benefit of the better-off. I’ve written about some examples here and here.
A further point of at least partial agreement concerns what the BCCLA summarizes as my “examples [of] private actors disrupting religious or union meetings”. The BCCLA says that “at least sometimes” “the state [should] step in and protect property rights in these types of cases”. Here too I note our agreement so far as it goes, but, as I am about to explain, the BCCLA’s discussion of the “sometimes” caveat suggest that it does not, in fact go all that far ― and that its belief in property rights is very, very qualified.
This may be because the BCCLA doesn’t have a clear understanding of what property rights actually are. By way of illustrating their belief in the occasional protection of property rights against private interference, they note having “taken a position in favour of legislated ‘bubble zones’ … to prevent protests in immediate proximity to abortion clinics and the homes of service providers”. In their view this means “expanding private property rights”. It doesn’t. There may be a case for some “bubble zone” legislation ― though I would also note that it is very easily abused, with bubbles expanding beyond what is plausible in terms of both size and prohibited activities and courts deferring to legislative line-drawing ― but that has nothing to do with property rights.
Property rights are above all rights to exclude ― generally and without explanation if one so wishes. The law might limit them in various ways, for example making it unlawful for some owners to exclude people for some specific reasons (e.g. discriminatory ones). But that doesn’t change the essential nature of the right. A shopkeeper is not at liberty to exclude, say, Jews (and only Jews) from the premises. But he is at liberty to exclude anyone at all after 6PM if he chooses to. Bubble zones prohibit specific types of protest or other actions (like accosting the would-be client of an abortion clinic) in the public space near some sensitive location; they don’t grant anyone a general right to exclude from the area to which they apply. For that matter, while a property right also allows the owner to invite strangers onto the property (subject to such abominations as zoning legislation), an abortion clinic wouldn’t be at liberty to waive the application of a bubble zone should it wish to.
This matters because the BCCLA’s position on protests seems to me to be bound up with its view that property rights are infinitely flexible, subject to expansion and contraction depending on the nature of whatever countervailing interest happens to be at play. They can supposedly expand, beyond what property lawyers would actually recognize, in the face of bad protestors, and fall into abeyance in the face of good ones. They are, the BCCLA argues, at their strongest when “asserted against the state or in addition to some other civil liberty” ― and one has to infer that, conversely, they are weaker (or at their weakest?) when asserted against other private actors.
But again that’s not how property rights work. The BCCLA seems to be failing to heed the distinction between property rules and liability rules, treating property rights as if they could be taken away non-consensually. (They can be so taken away by the state, as to which they are, in effect, liability rules ― but not by private actors.) But it’s even worse than that, of course, because the BCCLA wouldn’t even recognize that the protestors are liable to the owners whose property they non-consensually occupy. For the BCCLA, it is enough that occupiers did not infringe the owners’ “civil liberties”. What we call property rights are, on this view, things that can be magicked out of thin air and right back into it.
And who will be doing the magicking? Why, the self-same state whose invasions of property rights the BCCLA quite rightly bemoans. The state, in its legislative incarnation, will create pseudo-property rights for abortion clinics; the state, in its judicial form, will nullify the actual property rights of people and institutions unlucky enough to have attracted the presence of protestors (except pro-life ones, of course). Far from being a bulwark against the state, including ― and especially! ― for the vulnerable and the political outsiders, property rights will be just another privilege the state will bestow on the politically connected and favoured, and deny those whom it holds in contempt.
So, to be clear: real property rights don’t depend on whether anyone ― except the rights holder ― likes the parties they are being asserted against. They don’t depend on whether the state approves of the manner in which they are exercised. They can be limited by law, but the limitation must be necessary and limited; promiscuous limitation eventually results in the right itself being only an illusion. In all of this, property rights are no different from such rights as the freedom of expression or religion, even though, under the Canadian constitution, the latter are judicially enforceable against legislatures and the former is not.
And, despite professing respect for property rights, I really don’t get the impression that the BCCLA supports them, rather than a watered-down version that is the result of a misunderstanding if not of misdirection. And that’s a damned shame, because it’s the real thing we need, as I argued in my original post, in order to support all the other rights and freedoms that the BCCLA presumably still does believe in.