Property rights were central to the origins of the liberal political tradition. And, in our time especially, they should be central once again. In addition to their inherent value as a vital element of liberty and autonomy, bolstering them is essential to uplifting the poor and disadvantaged and boosting prosperity and innovation. The right to private property can also help protect a variety of other important rights.
Property rights were a central focus of the early liberal tradition. John Locke famously wrote that the purpose of government was the protection of “life, liberty, and property.” Many of the American Founders made similar statements. At the Constitutional Convention, Alexander Hamilton avowed that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.” James Madison—Hamilton’s great adversary on many issues—agreed, writing in his famous 1792 essay on “Property,” that “Government is instituted to protect property of every sort… This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
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In more recent times, many—including many left-liberals—have downgraded property rights, and advocated that they be severely limited, often supposedly to protect the interests of the poor and disadvantaged. Yet the poor and disadvantaged have the most to gain from strengthening protection for property rights. Stronger protections would raise living standards for them, and for society as a whole.
The Guardian of Every Other Right
As early liberals understood, property is essential to liberty. Almost every important human activity requires the use of property. This is most obviously true of those involving property in land, such as housing or most types of work. But the same is true of those requiring other types of material goods. We cannot feed and clothe ourselves without property rights in objects.
Property is also essential to the exercise of almost every type of liberty and autonomy. There is no meaningful freedom of speech without property rights in books, computers, newspapers, printing presses, internet connections, and other facilities necessary to disseminate our words. There is little, if any, freedom of religion without property rights in locations needed to hold religious services, propagate religious doctrines, and operate other religious institutions. The right to contraception protected by the Supreme Court’s famous decision in Griswold v. Connecticut, though usually thought of as a “privacy” right, depends on the right to acquire and possess property rights in contraceptives.
We can make similar points about almost any other form of liberty. If exercising it requires the use of land or material goods, that exercise depends on property rights. Without such rights, the government could at any time negate the liberty simply by denying the ability to use property needed to exercise it.
Moreover, liberty depends not just on the mere legal ownership of property, but on the right to use that property for the purposes the owner decides. A mere right to “exclude” other people isn’t enough (even though some property theorists claim exclusion is the central element of property). It is of little avail if you are officially the owner of a printing press or a computer, but are not allowed to use it to publish and disseminate your words. Being the owner of a church is of little spiritual value if you cannot use it to hold services. And so on.
Ultimately, in most situations, we seek to own property for the purposes of using it. And the right to use is not only the foundation of property ownership itself, but also essential to the exercise of almost all other liberties. For this reason, among others, Arthur Lee—a publicist and diplomat during the American Revolution—called property “the guardian of every other right.”
Socialists and many left-liberals may retort that reasoning like the above shows that a system of private property gives liberty only to the rich. As the saying goes, “freedom of the press is guaranteed only to those who own one.” But this underrates the many ways in which private property guarantees liberty to all. In a pluralistic, competitive market economy, the owners of productive property have incentives to use it in ways that meet a variety of preferences. If there is a market demand for, say, left-wing speech or right-wing speech, property owners have an incentive to use their facilities to meet the demand. If some owners do not want to serve a particular market niche, that creates an opportunity—and an incentive—for others to fill the gap.
The same goes for the demand for religious services, for contraceptives, and so on. Markets allow us to accommodate a diverse range of preferences. People who rent property also acquire crucial property rights, even if not the same as those that belong to the owners of land or production facilities. And similarly, landowners who rent out homes to tenants have incentives to cater to a wide variety of preferences and lifestyles. Some allow pets, some not. Some allow religious services on site, others not. Some have rules severely restricting noise, while others are more permissive. And so on.
By contrast, if the state imposes a single rule for these issues and others like them, it destroys the options created by pluralism and competition. The same occurs if the government simply owns the relevant properties outright, as in a socialist system. That’s true regardless of whether the government’s rules reflect the views of the majority of the public, a coterie of “experts,” or narrow interest groups that manage to “capture” the political process.
How Undermining Property Rights Harms the Poor and Disadvantaged
The erosion of property rights over much of the last hundred years has worked to the great detriment of the poor and disadvantaged. Strengthening those rights could do much to enhance liberty and opportunity for the least well-off, and to boost economic growth and innovation in society generally.
This is most obviously true in the case of the housing crisis—perhaps the biggest obstacle to opportunity for the poor and disadvantaged in the United States today. And exclusionary zoning is the biggest cause of that crisis.
Exclusionary zoning involves restrictions on land use that constrain the amount and type of housing that can be built in particular areas. Some 70 percent of all residential property in the United States is zoned for single-family residences only. A broad cross-ideological array of economists and land-use scholars agrees that zoning is responsible for massive housing shortages, and that it also cuts off millions of people—particularly the poor and minorities—from economic and social opportunities. As a result, millions of people have their liberty restricted. They are also prevented from being as productive and innovative as they otherwise could be.
The people blocked from moving by exclusionary zoning and other, similar restrictions are disproportionately the poor and minorities. Historically, as various scholars have documented, zoning restrictions were often adopted for the explicit purpose of keeping out Blacks and other minorities, excluding the poor, or both. A combination of economic ignorance, racial and ethnic bigotry, and NIMBY (“not in my backyard”) resistance to development has led to the establishment and persistence of restrictions that cause enormous harm.
Exclusionary zoning has grown since the Supreme Court’s badly flawed 1926 decision in Village of Euclid v. Ambler Realty Co. upheld it against constitutional challenge. In a 2024 Texas Law Review article and a shorter version in The Atlantic, Joshua Braver and I outline why most exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires payment of “just compensation” whenever the government takes private property. This is true from the standpoint of both originalist and living constitutionalism. In a recent follow-up article, we describe how state constitutional law can be used to combat exclusionary zoning. I have also published a shorter, nonacademic version of the latter at the NYU Brennan Center State Court Report. In these works, we also describe how exclusionary zoning can be curbed through a combination of litigation and political action. I am a libertarian, generally sympathetic to originalism. Braver is a progressive and a living constitutionalist. Our collaboration here is an example of how expanding property rights can unite different elements of the liberal tradition.
Zoning restrictions and other similar regulations are potentially justifiable in rare situations where they forestall a serious threat to public health or safety, such as the spread of pollution or contagious disease. As described in our Texas Law Review article, these kinds of considerations are at the heart of the traditional “police power” that states have historically enjoyed. This police power constitutes an exception to the constitutional rule that governments must compensate property owners when their property is taken. But that exception should be construed narrowly, and the government must bear the burden of proof, in order to prevent the police power from being used as a pretext for suppressing normal housing construction.
Exclusionary zoning is just one of several ways in which undermining property rights has destroyed liberty and opportunity for the poor and minorities, often on a massive scale.
The same is true of many state and federal courts’ decisions to allow state and local governments to use eminent domain to condemn private property for almost any purpose they want. The Fifth Amendment only allows condemnation of private property for a “public use.” The dominant early understanding of this provision was that a public use could only be for a government-owned project, or one owned by a private party legally required to serve the entire public, such as a public utility. Unfortunately, beginning with the Supreme Court’s terribly reasoned decision in Berman v. Parker (1954), federal courts started to interpret “public use” to include any possible benefit to the public.
In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I describe how the result of this ruling and others like it at the state level was to empower state and local governments to forcibly displace hundreds of thousands of people—mostly poor and minorities—through “blight,” “urban renewal,” and “economic development” takings. James Baldwin famously described “urban renewal” as “Negro removal.” He was not far off, given the demographics of those displaced. While victims of these takings get compensation, the amounts often fall well below the “fair market value” required by Supreme Court precedent, and that metric itself often fails to fully compensate the owners and displaced persons for their losses.
This caused great suffering, and in most cases it has destroyed more economic value than it created. Government officials who approve condemnations at the behest of well-connected developers and other interest groups have little incentive to ensure that they actually produce the economic and social benefits that supposedly justify them. Moreover, destroying communities and making property rights insecure predictably reduces investment and development in the long run.
In 2005, the Supreme Court largely reaffirmed Berman in a closely divided 5–4 decision in Kelo v. City of New London, which upheld the condemnation of homes for the purpose of promoting private “economic development.” Kelo led to a massive political and legal backlash, as forty-five states enacted eminent domain reform laws, and multiple state supreme courts rejected Kelo as a guide to the interpretation of the public use clauses of their state constitutions. But many of the new reform laws impose few or no meaningful constraints on the use of eminent domain, and much work remains to be done to fully curb this kind of abuse.
Asset forfeitures are another area where weak protection for property rights leads to abuses that disproportionately harm the disadvantaged. In many states, law enforcement agencies can confiscate property that was supposedly used in the commission of a crime, even if the owner was never charged or convicted of anything, and even if he or she had no involvement at all in the supposed offense. And, often, there is little due process given to the victim. Even when a crime has been committed, the forfeitures are often hugely disproportionate to the offense. In a case currently before the Supreme Court, the state of Alaska confiscated a $95,000 plane owned by a “bush” pilot because he had illegally transported a six-pack of beer.
Like exclusionary zoning and the use of eminent domain, asset forfeitures disproportionately harm the poor and minorities. The confiscation of a car or similar property harms them far more than the wealthy. For a working-class person, it can cause the loss of a job or other severe harm. And less affluent people have greater difficulty affording the expense of contesting the seizure in court, which often is almost as great or greater than the cost of the seized property.
Some on both left and right seek to fix housing displacement by increasing government abrogation of property rights rather than reducing it. But such efforts tend to be harmful and counterproductive. Rent control, often touted as a solution for high housing costs, has a long history of exacerbating housing shortages by reducing the amount of property on the market. New York Mayor Zohran Mamdani’s plan to confiscate many apartments could well be even worse. Those on the right who hope to address the housing crisis by deporting immigrants are equally off-base. Increased deportations exacerbate housing problems because undocumented immigrants are disproportionate contributors to the construction workforce.
Government control of property also often threatens civil liberties. The Trump administration’s effort to use the Federal Communications Commission (FCC) to force broadcasters to keep critics off the air leverages the FCC’s control over broadcast frequencies. Sadly, it is far from the first time the FCC has been used to target political opponents of the party in power, though Trump’s efforts are particularly egregious. As Nobel laureate economist Ronald Coase showed in a classic 1959 article, we can eliminate this threat to freedom of speech by abolishing the FCC and turning broadcast frequencies into private property.
For similar reasons, we should resist both the Trump administration’s and left-wing democratic socialists’ efforts to have the federal government take ownership of large parts of major industries. Such plans will predictably lead to lower-quality goods and services and give the government leverage with which to suppress diversity and target opponents.
Conclusion
I cannot provide a comprehensive account of property rights in a single essay, nor address all possible objections to them. But liberals would do well to recognize the centrality of private property to the overall liberal project, and to support at least a presumption that land and productive assets should be privately owned, and the owners allowed to use the property as they see fit, barring proof that the use poses a serious threat to public health or safety. Whether you are a libertarian who emphasizes property rights’ role in enhancing liberty and human happiness, an egalitarian focused on the interests of the poor and disadvantaged, or some combination of both, you have good reason to support strengthening protection for private property rights.
