Losing private property

Francis Poretto of Eternity Road has an excellent post up about the need to return to the concept of "private property." To quote Poretto:

Today, there's essentially no right of private property left. Consider: activist busybodies can forbid you to fill in a wet trench on your privately owned land. They can forbid you to cut down your own tree. They can demand that the flora on your land be of certain kinds and in certain percentages. They can forbid you to add a wing to your home, or rent out an unused bedroom, or operate a one-person business therein. And of course, given the Kelo decision, politicians can relieve you of all rights to your home at their sole say-so, not for any defensible "public use" but merely because they want someone else to have it.

Environmental law in particular, is rife with the notion that the government can do pretty much anything, based on the flimsiest of environmental notions, and the private property "owner" has to comply. Usually, this involves the "owner" losing control of some aspect of his formerly private property, while having to bear often onerous costs for the "benefit" of the public at large. I await the community I live in insisting that I treat the yard to rid it of the "wild flowers" that grow in my lawn. At that point I will raise the specter of putting all these pounds of toxic chemicals into the storm water system and let the environmentalist fight it out with the yard proud. But how did we come to this? Francis Poretto again:

The rights of private property have been under assault for as long as the concept has existed, but the first serious blow against them in America arrived with the notion of a "public accommodation."

In the early Sixties, the majority of federal legislators were eager to do something about vestigial race-based discrimination by retail businesses. It was the politically hot topic of the day, second only to the campaign against "separate but equal" in public schools. But given the First Amendment's recognition of freedom of association and the Fifth Amendment's concession of private property rights, a rationale was required from which to argue that a retail business wasn't fully protected by those rights.

The rationale was that, since a retail business implicitly solicits the trade of the general public, it straddles the boundary between private property and a public facility: it must be required to "accommodate" anyone who walks through its door. Accordingly, legislation that compels such accommodation was deemed Constitutionally licit, even though no power granted Congress by Article I, Section 8 would appear to cover the undertaking. And so we got the Civil Rights Act of 1964, and all that's followed from it as the notion of a "public accommodation" has been expanded to cover ever more organizations, institutions, and facilities.

You see, formerly a tavern owner, for instance, had the right to refuse service to anyone. He could allow or disallow pretty much any (legal) behavior. Tavern owners often still claim that right, but it is questionable how enforceable that claim may be if a person of the correct minority status pushes it. In any case, with the concept of "public accommodation" we now find that the pettiest of behaviors are decided not by the tavern owner, but by laws. Thus, for instance, no smoking laws, even in "private" offices.

Conservatives appalled by the luxuriance and infinite scope of law in our time must attack the problem at its root: the destruction of the rights of private property.

But how to do it? This is an illustration, yet again, that whenever lawmakers try to take a shortcut to doing something, even something good, like ending discrimination, there are unintended consequences. Unfortunately, according to the race hustlers, they didn't solve the problem of discrimination either. How typical.