One gets the impression from reading Tea Party literature that property rights are inviolable, sacrosanct, handed down from on high, and unchanged since the birth of our nation. But America’s history differs from that interpretation.
When we were a young nation and most of us farmed, conflicts among neighbors over property rights were interpreted by courts and governments in favor of those wanting to limit a neighbor’s ability to disturb the peace and functionality of one’s land. For example, your neighbor would be denied the right to emit noise and dust or restrict water flow that affected your property.
But community preferences changed with the industrial revolution to favor economic development, industry, commerce, and the infrastructure to support it. Property rights conflicts among neighbors were interpreted by courts and governments in favor of those wanting to develop their properties. For example, neighbors could no longer hinder your access across their property to resources and infrastructure that created economic growth and thus improved community well-being. Such developments included ditches that drained swamps, channels that brought irrigation water, railroads and roadways that transported things to market, and even natural resource extractions such as oil wells. Later still, as our country became more urban, populous, and wealthy enough to worry about pollution and neighborhood amenity, property rights conflicts were settled in favor of those wanting to limit types and densities of development that differed markedly from neighbors (i.e., single use zoning).
We must also acknowledge as a nation, with some shame, that property rights have not been equally available to all people. In the early years of the United States, husbands and fathers controlled a woman’s property rights. It was just over 100 years ago that all states granted women rights to control property. The access to property rights by immigrants and slaves has also changed over time.
Even protections against trespass—that is, the “right” to exclude others from one’s property that so dominates Tea Party rhetoric—have changed throughout American history. Landowners were required to allow others to wander across their lands and hunt or gather foods, medicines, or fuel, and in some places graze cattle.
Private property rights are not now and never have been absolute in the United States. Community’s grant, negotiate, and enforce property rights with laws, courts, and police powers. Property rights have changed over time to reflect what the community deems is in its best interests. As communities change, so will property rights.