Understanding Constitutional Rights as a Form of Property Would Make America a More Perfect Union

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I have a simple definition of property. Here it is:

Property is anything that people can legally own and has value, whether that value is real or sentimental.

Using the above definition as a guide, I believe there are four kinds of property. Here they are:

Classic: This is the stuff that immediately pops into your head when you think of property—land, money, inanimate objects such as homes, cars, and laptops, and domesticated animals such as family pets and livestock.

Cognitive: This is another name for intellectual property. Inventions, books, movies, music, etc. have economic value, however small that might be in most instances, and their creators deserve exclusive rights to whatever economic value their creations generate.

Corpus: This is the property you have in yourself—your body. Your back, limbs, hands, feet, eyes, tongue, and brain are fantastic tools for pursuing happiness and generating economic value, and as long as you aren’t using your body to violate someone else’s property (regardless of type), no one has the right to stop you from exerting dominion over your body.

Constitutional: Something that is immoral when done by private citizens doesn’t automatically become moral when the government does it. Constitutional property is the property you have in the checks that stop the government from becoming an instrument of plunder. We commonly understand this property as “rights.” The government must be as respectful of your property (regardless of type) as your neighbor. This doesn’t mean, of course, that the government can’t confiscate your property. In order to referee the game of life (i.e., protect the weak and unsuspecting from the scum) and supply universally needed goods and services that wouldn’t exist without coercion (e.g., roads, sewers, fighter jets, legal tender, environmental protections, etc.), the government must be able to confiscate corpus property (put the scum in jail) and classic property (collect taxes and condemn privately owned homes, buildings, and land).

The Takings Clause and Constitutional Property

The Takings Clause of the Fifth Amendment reads as follows:

“…[N]nor shall private property be taken for public use, without just compensation.”

Now, for all of America’s history, the Takings Clause has basically only been applied to one form of private property: classic property. The government takes someone’s land so it can build a highway, and the government justly compensates that someone by paying him or her the fair market value of the confiscated land.

But what if we started applying the Takings Clause to constitutional property? The government surely takes constitutional property, whether directly or indirectly, and often does so for legitimate reasons. The only problem is that it never justly compensates the victims of such takings. And this injustice naturally irks the victims of such takings and the people troubled by abusive government behavior. If, on the other hand, the government began to justly compensate those who suffer constitutional property takings, America would find itself with a less rogue government and a more harmonious populous.

To see how I’ve come to the above conclusion, let’s apply just compensation to five hot-button constitutional property takings.

Affirmative Action

Affirmative action is the taking of someone’s equal-protection-of-the-law property—someone, for instance, is denied admission to college or loses a promotion because he or she has the “wrong” skin color, sex, or religion. Here are two examples of just compensation for those who have suffered an equal-protection-of-the-law taking:

Elite College

Harvard selects the top 2,000 applicants for the Class of 2027 on a purely academic basis. At first, the admission committee has no demographic information on the applicants; just SAT scores, AP class scores, and high school GPAs and rankings.

After finding and securing the top 2,000 applicants for the Class of 2027, the admission committee then reviews the demographic information of the enrollees. And if it finds that the Class of 2027 doesn’t have enough blacks, elite ice hockey players, or children of alumni and famous people, it determines how many of the original 2,000 enrollees need to be de-enrolled.

For argument’s sake, let’s say the admission committee determines it needs 200 affirmative action slots for the Class of 2027 to have the “right” number of blacks, elite ice hockey players, and children of alumni and famous people. The admission committee then randomly selects 200 of the original 2,000 enrollees and informs these unfortunate souls that their dream of attending Harvard is over; their acceptances have been revoked due to affirmative action. And to justly compensate these 200 unfortunate souls for forfeiting their equal-protection-of-the-law property, the admission committee informs them that each of them will be getting a check from Harvard equal to four years of tuition ($219,072).

Civil Service

The NYPD needs ten new captains, so it gives a promotional exam to any of its lieutenants who are interested in becoming a captain. But to the shock of the NYPD, none of the top ten scorers on the exam are women.

To rectify this calamity, the NYPD randomly selects two of the top ten scorers and informs these unfortunate men that they will not be promoted to captain; they will remain lieutenants. But to justly compensate them for forfeiting their equal-protection-of-the-law property, the NYPD also informs them that they will immediately start receiving captain’s pay.

Crime

In order to reduce crime, our police and courts need to be proactive. But in order to be proactive, our police and courts can’t help but take constitutional property: someone is denied bail without having been convicted of the charge (a due process taking), or someone is stopped and frisked or pulled over for a sobriety check (a warrantless search taking). Here are some ways we can justly compensate those subjected to proactive police and courts:

Bail

Anyone denied bail or unable to afford bail will be paid $50 a day for every day he or she remains in jail without being convicted. If the accused is eventually found not guilty, he or she gets to keep the accumulated bail compensation, free of federal and state income taxes. If the accused is eventually found guilty, he or she can reduce the length of his or her sentence by surrendering the accumulated bail compensation.

Stop and Frisk/Sobriety Check

Anyone stopped for suspicion of carrying an illegal weapon or driving drunk will be rewarded with a fifty-dollar gift card, providing, of course, that he or she isn’t carrying an illegal weapon or isn’t driving drunk. If he or she is carrying an illegal weapon or is driving drunk, he or she won’t get a fifty-dollar gift card and will be arrested.

Red Flag Law

There are currently no red flag laws regarding the right to bear arms. But if Congress enacted such laws, and the Supreme Court allowed them, those who suffer a right-to-bear-arms taking, and are neither a convicted felon nor legally insane, should be justly compensated. Here are some suggestions:

• A right-to-bear-arms taking must be issued by a court that operates with complete transparency, and the period of time for the taking may not exceed five years. After five years, the court must review the taking again to extend it.
• Those who don’t own a gun and are barred from obtaining a gun will get $25,000 per year for each year of their right-to-bear-arms taking.
• Those who do own guns and are forced to surrender them will get $50,000 per year for each year of their right-to-bear-arms taking. At the conclusion of their right-to-bear-arms taking, their guns will either be returned to them or they will get fair market value for their guns.

Rent Control/Rent Moratoriums

Rent control and rent moratoriums, however fair they might be to tenants, are decidedly unfair to landlords. Landlords subjected to rent control or a rent moratorium are having their business profits artificially reduced or eliminated by the state. To justly compensate landlords for this equal-protection-of-the-law taking (what other businesses, after all, are subjected to price controls or consumer payment moratoriums?), I suggest the following:

• For as long as the government proclaims a rent moratorium, landlords aren’t obligated to pay property taxes on their rental properties. When the rent moratorium is lifted, landlords must begin paying their property taxes again, but are only obligated to pay the moratorium-excused property taxes when their tenants have paid them the moratorium-excused rents.
• Landlords are entitled to a property tax break pegged to the severity of rent control: the smaller the allowable annual rent increase imposed by the government, the larger the property tax break. Here’s an example of how that would work:
  • 0-2% allowable rent increase: 25 percent property tax break
  • 2.1-4% allowable rent increase: 20 percent property tax break
  • 4.1-6% allowable rent increase: 15 percent property tax break
  • 6.1-8% allowable rent increase: 10 percent property tax break
  • 8.1-10% allowable rent increase: 5 percent property tax break

Crony Capitalism

Crony capitalism is another example of an equal-protection-of-the-law taking. One company, for instance, gets a special tax break that none of the other companies in its sector get; the frowned-upon companies are thus reduced to second-class status. To compensate for this taking, frowned-upon companies should automatically get 50 percent of the tax break that their crony-capitalist peer receives. Here’s an example of what I mean:

• Amazon, for building a monster fulfillment center in New York City, gets a 20-year, 100 percent property tax abatement on that monster fulfillment center from the New York City government.
• Every other retail company in New York City gets a 50 percent property tax abatement for the next 20 years.

Free Speech

For many years now, tobacco companies have been denied some of their free-speech property; they’re not allowed to advertise on tv or radio. To justly compensate them for this taking, the federal government could determine the average advertising budget for S&P 500 companies (as a percentage of revenue), double that average, and then multiply that average by tobacco revenues to come up with a compensation fund. Here’s an example of how that would work:

• Average advertising budget for an S&P 500 company: 1.3% of revenues
• Average advertising budget doubled: 2.6%
• Tobacco company revenues for the previous year: $49 billion
• Compensation fund to be divvied up by market share amongst tobacco companies: $1.27 billion ($49 billion x 0.026)

Final Thoughts

Americans are reasonable people with largely noble instincts. So for each of the hot-button constitutional property takings discussed above, they are honestly torn. When it comes to affirmative action, for instance, Americans know that for much of our history black Americans were treated very shabbily. So Americans want to atone for that historic wrong by making sure black Americans are an integral part of American society—especially that part of American society that is forged by those who have attended our most prestigious universities. But Americans also know that denying someone a Havard education because of his or her race is an unmitigated wrong and an affront to our most cherished ideal (“We hold these truths to be self-evident, that all men are created equal…”). Treating our Constitutional rights as a form of property, and then enforcing the Takings Clause of the Fifth Amendment when they are confiscated so to speak, is a great way to bridge the divide between competing interests and simultaneously help the vulnerable and less fortunate while staying true to our core principles—the greater good is advanced, but those who take it on the chin for the greater good are compensated for the battering they receive.

Okay, groovy freedomist, that’s all I got. What say you? I say our rights are a form of property, and if the government takes them to pursue a legitimate government objective, the government should justly compensate those who suffer the taking. I also say that justly compensating people for constitutional property takings would make our government more humble and more circumspect when it comes to playing the dangerous game of social engineering. Let me know what you think when you get a chance. Enjoy Independence Day. Peace.