Property Rights Foundation of America®

from Proceedings of the Second Annual N. Y. Conf. on Private Property Rights (PRFA, 1996)

Government, the New Leviathan
James Bovard
Author, Public Policy Analyst

I want to thank Carol LaGrasse for inviting me - its a pleasure to be here today. I'm honored to have a chance to speak before a group of property rights advocates. In the last five years, property rights groups have been among the most effective forces in this country in exposing the abuses of Big Government and fighting government efforts tooth and nail. It is great to see individual citizens willing to stand up to individual bureaucrats, entire bureaucracies, and entire governments. This is what made America great - and this is what will can make America great again in the future.

Freedom is increasingly seen as simply another government-distributed handout, in the same category as food stamps and subsidized subway tokens. Attorney General Janet Reno recently told a group of federal law enforcement officers: "You are part of a government that has given its people more freedom... than any other government in the history of the world." If freedom is a gift from the government to the people, then government can rightfully take freedom away.

In 1775 New England Vermont patriots marched against the British Army under a flag depicting a pine tree - a symbol of British tyranny. Because pine was an excellent material for building ships, King George claimed the right to cut down any pine trees in the American colonies without compensating the owners. The King's assertion of an unlimited right to seize private property symbolized the colonists' subjugation to a foreign power and helped to spark the American Revolution. The British government consistently refused to compensate colonists for the seizure of pines on their land, or for the damage that the Kings' agents did to their land in clearing space to harvest large pines. Though contemporary history books have largely forgotten these clashes, A historian writing in 1846 observed: "The great issue [the American Revolution] began in the forests of Maine in the contests of her lumbermen with the King's surveyor, as to the right to cut, and the property in white pine trees."

Now, more than two centuries later, mass confiscation has again become fashionable. Politicians and the courts have created an overwhelming presumption in favor of the government's right to seize control over private land, seize possession of private homes, boats, and cars.

Asset Forfeiture
Private property marks the boundary between the citizen and the State. John Locke, a writer who had great influence on the Founding Fathers, wrote that if someone can come in and seize part of his property, then the man has no property at all - since the property is not inviolable.

One of the most radical changes in Americans' lives in recent years is the proliferation of asset forfeiture laws. Federal agents have confiscated over $5 billion in cash, cars, homes, boats, and other property from citizens in the last ten years - in most cases, with no proof of criminal wrongdoing by the owner. Hundreds of thousands of Americans have had their property confiscated thanks to the forfeiture laws.

Asset forfeiture is one of the most important issues for understanding the nature of modern society because it is one of the best examples of pure government power. The government has no burden to prove the citizen guilty; instead, the citizen must sue the government in court and prove himself innocent. Federal agents can now seize a citizen's property under any of over a hundred different statutes. While the forfeiture bandwagon got rolling with drugs - it is now rolling over thousands of Americans who have no connection with narcotics.

In Georgia, the FBI seized three Mercedes Benzes from a business woman after claiming that her husband placed a few sports bets from her car phones.

A central Florida police department launched a program to automatically seize the cash of anyone police considered suspicious and who had more than $100 in his pockets.

In Miami, federal attorneys confiscated the $150,000 home of an elderly Cuban-American couple after the couple was convicted to holding illegal weekly poker games for friends and relatives on their patio.

Customs Service officials confiscated the quarter-million dollar yacht of a man living in Burien, Washington. His crime? He had sailed to Cuba and given away 15 cartons of dried milk and other "care packages" to a Cuban organization that helps the hungry. Customs officials claimed that this was a violation of the Trading with the Enemy Act.

In Pittsburgh, federal prosecutors last year devastated Jane Ward after she had fully cooperated with them in testifying to help solve the murder of her husband, John Ward. Prosecutors decided that John Ward had been a drug dealer and that all of his previous income was drug profits. They proceeded to confiscate almost all of the widow's assets; federal officials arrived with a truck at the Ward's home and carted off all the family's furniture. Prosecutors even sought to confiscate all the proceeds from Ward's life insurance; Jane Ward and her three children were forced to go on welfare.

Law enforcement officials are also seizing apartment buildings to punish the landlords for not eradicating drug dealing in the apartments. In Cleveland landlords informed the police of drug dealing in their buildings; the city responded by quickly seizing the buildings and evicting all tenants, even in a building where drug-dealing occurred in a single apartment. If the same standard was used on the government housing projects by private citizens, most of the projects could be seized from the government.

The more sweeping that asset forfeiture laws become, the less effort police make to actually insure that they are confiscating the property of criminals - rather than innocent citizens. Earlier this year, the Justice Department announced that local and state law enforcement agencies would be allowed to use money they received from forfeiture funds to pay police salaries. The decision was harshly criticized by some law enforcement officials, who feared that the change would lead to an surge of "bounty hunting" forfeitures - policemen devoting their time to seizing private property rather than protecting private citizens. It would be difficult to craft a better incentive to turn government agents into public enemies.

The Supreme Court recently heard a landmark case on asset forfeiture. The case involved John Bennis, a man who picked a lady of the night off of a Detroit street; police swooped down upon the two of them as she was engaged in an act of prostitution. The co-owner of the Pontiac was one Tina Bennis, John's wife. She was outraged that the city government confiscated the car, even though she had no guilt or complicity in her steel worker husband's escapade on his way home from work, The case went through the courts - and on March 4, the Supreme Court shocked almost everyone by endorsing the seizure.

Chief Justice Rehnquist wrote the majority opinion. Rehnquist based his decision heavily on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships. Regrettably, Rehnquist did not deign to explain the legal equivalence of piracy in the 1820s and sex in the 1990s. Justice Stevens issued a telling dissent:

For centuries prostitutes have been plying their trade on other people's property.. in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. ... As far as I am aware, however, it was not until 1988 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.

The Supreme Court's decision also could pose a threat to public safety. As Justice Stevens noted: "If the husband had taken advantage of the car's power of movement, by picking up the prostitute and continuing to drive, presumably the car would not have been forfeitable at all." I mean - people complain about the danger of people talking on cellular phones while they're driving - well, ...

Almost all the commentary on the Supreme Court decision greatly underestimated how much additional power the Court has given local law enforcement. Most commentators focused on the fact that the woman in the car was a prostitute; but, since police interrupted before she finished and received fair compensation, Bennis was convicted only for "gross indecency." This is a charge any overheated teenage couple parking on Lovers Lane could face.

If some private citizen sought to justify stealing his neighbor's car because he claimed to have seen the neighbor "messing around" with some hussy in the front seat, a judge might label the citizen certifiably insane and confine him to a mental institution. Yet, when a policeman stands in front of the judge and says the same things, the judge proclaims the police have every right to steal the car.

The court decided another forfeiture case in June - and this time the Chief Justice based his decision on the doctrine that forfeiture was justified because of the "fiction" that the government is suing the property itself, not the property owner. And since a mere piece of property can have no rights, what's not to like? This is a fiction that goes back at least 800 years - but it was apparently fresh enough for a majority of Supreme Court justices. As usual, any fiction that increases government power plays well in Washington - unlike the fiction that the Supreme court will stand up for the Bill of Rights and protect Americans against unconstitutional abuses by federal agencies.

Zoning, Zoning, Zoning
If you want to use your own land, increasingly you have to beg, bribe, and grovel to the nearest government bureaucrat.

A man's home is his castle, except if a politician covets the land the house is built on, or if his house is more than fifty years old, or if he has too many relatives living with him, or if he has old cars parked in his driveway, or if the person wants to add a porch or deck. Modern zoning laws presume that no citizen has a right to control his own land—and that every citizen has a right to control his neighbor's land.

Zoning laws have become far more invasive and restrictive in recent years. Several cities have banned pick-up trucks from its streets — and even from private driveways. Wellesley, Massachusetts, passed a zoning law limiting homeowners to only two live-in servants. (I was thinking about moving to Wellesley - but when I heard this - no way). Pasadena, California proposed banning residents from having weeds in their yards, a policy sometimes referred to as "crabgrass fascism." (With my lawncare skills, I probably should not think about moving there.)

One southern California city prohibited a family from moving into their new home because city inspectors decreed that the owner had painted his house the wrong shade of white.

In Los Angeles, a citizen can be sent to jail for converting his garage into a playroom for his children.

Some politicians openly brag about the power that zoning regulations give them. In Chicago in August, just before the Democratic Convention opened, city inspectors went on a rampage. Many businesses near the convention site were heavily pressured to put up fancy black iron fences around their sites. The area in question is not exactly upper class, and many businesses saw no reason to go to thousands of dollars of extra expense. Peg Kane, who owns a truck leasing firm, said the government's action cost her $8,500 and that "they didn't need to come in here like the Gestapo." Mayor Richard Daley, Jr. bragged to the Chicago Tribune: "Oh yeah, I've been hard all over the city. I kicked butt, in other words.... I asked them to put up instead of a wire fence a wrought-iron fence. That's for me, the mayor."

Zoning officials are in the front line of this nation's war against pumpkin abuse. In 1993, the village of East Hampton, Long Island, issued a warrant for the arrest of a food shop owner guilty of an unauthorized exhibition of pumpkins. Jerry Della Femina, the co-owner of Jerry and David's Red Horse Market, had a few dozen pumpkins stacked in front of his store. Village bureaucrats ruled that the pumpkins were the equivalent of a sign advertising the sale of pumpkins, and thus the owner needed a sign permit. (The shop was in a historic district, and government officials may have thought that similar markets in East Hampton in the 19th century never placed pumpkins in front of their stores).

The essence of zoning is the shotgun behind the door—the pending call on police to drag someone away in handcuffs and bulldoze their home. Zoning is not simply a question of bureaucrats and local politicians coming up with byzantine ordinances—but of the full force of government waiting to fall on the head of anyone who violates one of the constantly changing local land-use decrees.

New York City in 1985 gave a company permission to build a 31 story apartment building. After the building was up, the city announced that its officials had misread their own zoning maps - and demanded that 12 stories be slashed off the building. As a result of the city's ruling, the developer was forced to spend $1 million to pay for a 7000 pound robot to smash down the illegal floors of the building, floor by floor. Maybe it's just me - but that seemed very wasteful. What they should have done as a compromise is still make the owner tear down the extra 12 stories - but put two or three officials from the zoning commission on each floor because it got knocked down.

In Skaneateles, New York, the local government responded to one couple's zoning violations by sending in sheriff's deputies to drag out and jail the owner's wife and raze their $350,000 lakefront home. A couple's home was destroyed by fire and they hired an architect to build a new one. AFTER the home was completed, the town supervisor insisted that, because of an obscure provision in local laws, the house must be rebuilt exactly like the prior house. The couple did not bow down to the local officials, and the government came in with a bulldozer and settled the matter.

Historic Preservation
While Americans have commendably become more interested in their past, historic preservation itself has unfortunately become a pretext for mass confiscation. While the historic preservation movement started out with laudable goals, helping to save some of the most important old buildings in the nation, the movement now appears consumed by a desire to commandeer as much real estate as possible. Across America, the older a house becomes, the less right homeowners have to control their own property. The power to pronounce the magic word "historic" gives thousands of government officials the power to instantly strip any property owner of the right to control his residence. Property owners are being turned into indentured serfs of historic preservation commissions.

There are now over 1,800 state and local historic preservation ordinances. As the number of ordinances has proliferated, the type of buildings labeled historic monuments has become increasingly absurd. In 1992, a California historical commission designated a 1949 Bob's Big Boy restaurant as a historical landmark over the fierce objections of the owner. The Montgomery County, Maryland, historic commission proposed in 1993 to designate a pet cemetery as a historic monument. A 1950's motel in New Jersey was designated as a historic landmark.

Preservationists have "progressed" from targeting specific buildings, to targeting neighborhoods, to targeting entire cities for strict, government-enforced controls. The Escondido, California, city government designated all buildings more than fifty years old as historic structures and prohibited owners from demolishing them without paying a large demolition fee to the city government. The owner of one rickety, boarded-up old shack was stopped from selling it, even though he offered three times to donate the shack to the city as long as the city would pay to move the shack away. (The city government rejected his offers).

Historic preservation has become a tool for racial discrimination—a strategy to drive up housing prices and drive out poor people. A Housing and Urban Development department investigation in 1988 concluded that a decision by Alexandria, Virginia, to designate a 50-block black neighborhood as a historic district "was specifically intended to displace low- and moderate-income blacks from their homes in order to upgrade properties [and]... to promote the rise of property values and attraction of new residents." The Washington Post reported, "One of the criticisms of opponents was that, as a historic district, residents in Parker-Gray faced added costs for home improvements because they had to meet requirements of an architectural review board." The racial discrimination involved in the historic preservation designation was especially unfortunate because the Parker-Gray neighborhood had been a symbol of pride for many blacks.

St. Bartholomew's Church on New York's Park Avenue sought permission to sell its community house next to the church and replace it with an office high-rise in order to raise $100 million to finance repairs for the church itself and to fund the church's charitable activities. The New York City Landmarks Preservation Commission denied the church's request because of the historic designation of the church. The church sued, and a federal appeals court ruled in 1991: "The church has failed to prove that it cannot continue its religious practice in its existing facilities... So long as the church can continue to use its property in the way that it has been using it—to house its charitable and religious activity—there is no unconstitutional taking." The court's decision redefined property rights to exclude every possible use of property except its current use—effectively giving local governments unlimited power to put private property in a political deep-freeze.

Some preservation commissions have acted as if they are entitled to interpret Holy Writ. In 1987, the Boston Landmarks Commission prohibited the Immaculate Conception Church of Boston from altering the lighting, windows, paint scheme, doors, finishes, and a painting of the Assumption of Mary inside the church. The Commission justified its sweeping control over the interior of the church on the grounds that the interior "has major aesthetic importance independence of its religious symbolism." The Society of Jesuits, who owned the church, had proposed to renovate the interior in order to reflect architecturally the changes made to the Roman Catholic liturgy during the Second Vatican Council. The Jesuits sued the Boston Landmarks Commission, and the ruling was eventually overturned by the Massachusetts Supreme Court. As Professor Angela Carmella wrote in the Villanova Law Review, "By determining which religious beliefs are worthy of architectural expression, the state compels affirmation of particular religious beliefs... Design control involves fundamental threats to religious liberty... because they result from the state's conviction that it can co-design religious architecture, consequently reserving for itself a role as co-author of doctrine and worship and of religious expression."

A New York court in 1994 ruled that the New York City Landmarks Commission was entitled to impose historic designation on the interior of a Four Seasons restaurant - thereby prohibiting the restaurant from modifying its bar (built in 1958) or removing two hanging sculptures - as well as "ceiling panels custom-fitted with lighting fixtures" and certain bronze railings. In almost 300 cities across the nation, preservation panels even have the power to prohibit a citizen from modifying the interior of his home or building. Folks - with all due respect - that is none of the government's damn business.

Historic preservation ordinances routinely make home repairs far more expensive by requiring owners to use special windows or special materials. Cost (to others) is no consideration to the preservationists; New York's Landmarks Preservation Commission is officially banned from considering cost factors in its dictates on what type of windows or building materials residents of New York City's thousands of designated historic homes and apartment buildings are permitted to use. Prohibitions in New York City and elsewhere on installing cheap modern windows likely result in some poor people living in colder quarters.

Power lust sometimes appears to be the driving force of the preservation movement. Laurie Beckelman, chairwoman of the New York City Landmarks Commission, hailed the St. Bartholomew's court ruling as affirming the commission's "absolute power... to designate and regulate religious properties as landmarks." The court declared: "The church has failed to prove that it cannot continue its religious practice in its existing facilities... So long as the church can continue to use its property in the way that it has been using it - to house its charitable and religious activity - there is no unconstitutional taking." This a blank check to force any property owner to perpetually continue to use their property exactly as it is currently being used — to give local governments absolute power to put property into a political deep-freeze. If bureaucrats decreed that someone working as a ditchdigger would be prohibited from changing occupations and becoming a bricklayer, then the tyranny would be widely denounced. But when bureaucrats do the same thing regarding land use - prohibiting someone from changing their land use from changing a window shutter, there is no outcry as it is perceived as a legitimate use of government power.

Preservationists often sound as if they wish to summon the local police to enforce their own sentimentality. Washington Post architectural critic Benjamin Forgey wrote in 1991: "There's a simple test one can apply [to determine whether government should impose preservation controls]: stand in front of such a building, close your eyes and picture it gone. If the result is that you would really, really miss it, then it may need help." This is a wonderful guide to decide whether to effectively expropriate private property - simply whether people would "really, really miss" seeing a certain building. Forgey's statement exemplifies the self-indulgent nature of preservationists, who try to seize control of other people's land solely because of their emotional preferences. As Mel Garbow, a Washington land-use lawyer, observed, historic preservationists "are like butterfly collectors: they don't have any appreciation for butterflies, they just want to have another one for their collection trophy case. You have a small group of politically adroit people who create a kind of city museum by requiring individual owners to become exhibitions in this museum."

The current preservation crusade - with governments using heavy-handed coercion to try to save certain structures - is ironic. Only a few decades ago, from the 1950's through the 1970's, local governments used the bluntest coercion to destroy huge swaths of historic property in scores of American cities in the name of urban renewal. Cities which resisted the federally-funded attack of the bulldozers and maintained their old sections, such as Charleston, South Carolina, are now renowned for their historic ambience. Federal urban renewal programs (which displaced over 2 million Americans from their homes) probably destroyed far more historic buildings than have historic preservation ordinances actually saved.

Preservationists have advocated that buildings almost automatically be classified as historic when they become 50 years old. Yet, according to the U.S. Census Bureau, there are over eighteen million housing units in the United States that were built before 1940 — almost 20 percent of the nation's housing stock. Does an individual's right to control his own property automatically decline by two percent a year?

The National Trust for Historic Preservation saves its greatest hostility for those who advocate respect for private property rights. (The National Trust for Historic Preservation receives $7 million from the federal government each year). Arnold Berke, editor of the Trust's Historic Preservation News declared, "Many of those who mouth this claim [about property rights] are opportunists and extremists" and declaimed, "The public interest in the use of private land must be defended." Finding a quote like that one just makes my day!

There are many beautiful and important historic buildings in America, and people should be encouraged and - in many cases - rewarded for preserving them. Government boards could buy easements on private property, getting owners' voluntary consent to not destroy or modify buildings' exteriors or finding some other package of benefits to persuade owners to voluntarily preserve their buildings. There is no reason that government must rely solely on coercion in order to protect what a majority of taxpayers would be willing to see their own money spent to safeguard.

America's churches, homeowners, and businesses have enough problems without being subjected to a dictatorship of gadflies. Trampling the Bill of Rights - perhaps America's most important historic achievement - is no way to preserve history.

Conclusion
The future of American freedom depends largely on whether people recognize that government is a coercive institution - and that the bigger the government becomes, the more people will fall victim to it force.

The question of whether politicians will respect the rights of property owners is largely a question of whether a nation will have limited or unlimited government. Government cannot control property without controlling people. Every extension of control over property means a decrease in citizen's ability to rely on themselves and plan their own lives. Every decrease in the sanctity of private property will mean an increase in insecurity for some citizens. To allow the government practically unlimited control and jurisdiction over private property is to give politicians and bureaucrats almost unlimited power to intervene in private lives. We face a choice of private property or political subjugation. Citizens can either be treated like owners - or they can be treated like serfs.

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