“The Free State Project and Property Rights” by Jason Sorens

The Free State Project and Property Rights
by Jason Sorens, Keynote address to 2003 annual meeting of Vermont Citizens for Property Rights

I’ve been asked to speak today on “the Free State Project and property rights.” First let me take a moment to describe the Free State Project, and then I will go into the relevance of our efforts for property owners in Vermont and other states.

The Free State Project is an effort to get 20,000 advocates of strictly limited government (“libertarians,” “individualists,” and others of like mind) to move to a single state of the U.S., where the expectation is that they will work within the political system to reduce the size and scope of government. The Free State Project is not a political organization; its sole function is to help 20,000 likeminded people to move to a single state. Once we arrive in our state, we expect our members to join existing pro-liberty political organizations or to establish new ones where they are needed. Sounds ambitious, even radical? Perhaps. The motivation behind the Free State Project, however, is the lack of progress that advocates of individual rights, free markets, and decentralization have made at the national level over the last few decades. Despite the revolutions in political and economic thought and practice that have occurred in the last two or three decades in particular, we remain on our heels, fighting a rearguard action against bloated governments that continue to grow.

Coordinated migration for freedom is of course a long American tradition, from the Pilgrims to the Mormons to the Underground Railroad. Our research indicates that 20,000 activists could in fact win pro-freedom electoral majorities at the state level in several states. These are the 10 states being considered: Delaware, Vermont, New Hampshire, Maine, North Dakota, South Dakota, Wyoming, Montana, Idaho, and Alaska. We are circulating a Statement of Intent, both on our website and at meetings like this one; once 20,000 people sign the Statement, the move begins, and there is a five-year “grace period” in which to undertake the move. These provisions are meant to ensure that we do not start the move until we know that we have enough people to make a major impact on state politics, and to allow members to plan their move according to their own life circumstances. We also allow every new member to “opt out” of one or several of the 10 states under consideration if he chooses. We will decide on one state through a membership vote once we reach 5,000 commitments. Currently, we have 2,500 people signed up and ready to move, so we are halfway to the voting point. I expect that we will hold the vote sometime this year.

The Free State Project has been endorsed by prominent figures in the freedom movement, from Professor Walter Williams to journalists Vin Suprynowicz and Claire Wolfe. We have also received significant coverage in the mainstream media recently; in the candidate states, much of this coverage has been positive. New Hampshire newspapers and talk radio have treated us fairly and remarked that many of our ideas fit in with the views of native New Hampshireans. In Vermont, we would be entering a more polarized situation, but one with perhaps more possibilities. As everyone knows, Vermont has been trending hard to the left over the last three decades, while pockets of the state remain staunchly conservative. However, the Free State Project could bring Vermonters together by offering a creative synthesis of its values both new and old: a respect for individual liberties and the full Bill of Rights, an emphasis on localism and decentralization, and the use of private, cooperative solutions as an alternative to bureaucratic, governmental methods. In the rest of my talk I will describe how such a synthesis might look in the realm of property rights issues.

What would the situation for property rights eventually look like in Vermont if this state were chosen by the Free State Project? Property rights will be one of the first issues we tackle upon moving to our state, as regulations and infringements on property are largely a local and state matter. Of course, in a sense all rights are property rights: if I have a right to something, I own it – it is my property. From this perspective all public policy, including the federal income tax, Social Security reform, even drug prohibition, has to do with property rights. But in this talk I want to discuss three areas frequently identified with the term “property rights”: eminent domain, zoning and land-use planning, and asset forfeiture. All of these matters are handled mostly by state and local governments, and the Free State Project is likely to have a significant effect in all three areas.

In an ideal world, we might suppose, there would be no right of eminent domain and no zoning, planning, or building codes at all. Perhaps that is true, but from a political perspective, it is most practical and efficacious to focus first on the abuses and over-reaches of these policies. Here are a few reforms that I believe are politically possible, economically advantageous, and morally compelling.

With regard to eminent domain, a serious problem is growing across the country, in jurisdictions both large and small. The problem is the forcible taking of private property for private use. Reason magazine recently ran a story about a family car repair garage in Mesa, Arizona that city officials are trying to take, at a fraction of its assessed value, in order to give it to the owner of a hardware store so that he can expand his operations. The Institute for Justice successfully prosecuted a case against the city of Atlantic City, which was trying to condemn homes in order to turn them over to Donald Trump for a parking lot for one of his casinos. These abuses of the eminent domain power are legalized theft, pure and simple: private interests using the coercive mechanisms of government to enrich themselves in ways they could not in a free marketplace.

What can we do to stop this kind of abuse? I propose adopting the following three principles. First, public property that has been taken through eminent domain can never be transferred to private ownership without a competitive auction to the highest bidder, nor can public property taken through eminent domain be leased to private business at less than market value. This principle will prevent cities from taking private property and simply handing it over or leasing it at cut-rate prices to politically connected private interests. Second, full assessed market value must be paid for any property taken through eminent domain. Third, private property may be taken only for purposes intrinsically related to, and necessary for, a government’s constitutionally specified functions. “Economic development” is never sufficient rationale for the taking of private property. Governments may delegate the eminent domain power to regulated private businesses (for example, utility companies) only if the state constitution allows them to do so. These principles could first be adopted by local governments and even incorporated into their charters. Even better, state governments could incorporate the principles into their constitutions and thereby bind themselves as well as all local governments under their jurisdictions.

Zoning and land-use planning are also increasingly important issues. The large majority of city jurisdictions, both large and small, now have zoning of some kind. I actually grew up in a very large city without zoning, Houston. There really isn’t much difference between Houston and cities that do have zoning. Houston is certainly a sprawling metropolitan area, but that fact is mostly a result of the flat, wide-open geography and the economic strength of outlying counties. The main difference between Houston and zoned cities is that in some areas you can find a pub sitting behind a house in an ordinary neighborhood, or billboards advertising all kinds of creative things, from wombs for rental to men looking for wives.

And that’s just the point: to the control-freak mentality all these things are a blight, but I see them as creative and vibrant. Land-use planning fails on one of its key justifications: aesthetics. If you look at the most beautiful cities in the world, they developed long before bureaucratic urban plans were dreamed of. When I visited Venice, I think the city contained a total of about five square yards of green space, yet its human architecture makes it the most beautiful city I’ve ever seen. The crazy medieval jumble of Siena is both quirky and inspiring. So is “Rainbow Row” in Charleston, South Carolina. What suburban jurisdictions these days would allow you to paint your house purple or pink? The rise of zoning, not coincidentally I believe, correlates with the advance of conformism and banality in architecture, and a near end to what we might call the “self-sufficiency” of neighborhoods, when every neighborhood had a grocery store and a pub. (Even if zoning had aesthetic value, of course, it would not justify overriding property owners’ rights: we cannot “do evil that beauty may come.”)

To be sure, urban planners seem to be getting the message, and arguably the New Urbanism has many potentially appealing features about it. However, they seem not to have gotten over their hubris, the desire to plan projects – and other people’s lives – on a grand scale. Grand urban projects have almost always ended up grand failures. What we need instead is a humble localism that respects both aesthetics and private property rights. Abolish zoning, and replace it with homeowners’ associations established and maintained by consensual contracts. Environmental preservation and development management can be accomplished in this same way: for example, a farmer could place restrictions on his deed requiring that the entire property be maintained as residential property with no more than a single residence, so that his heirs cannot chop it up and sell it off to developers or mining interests. In Houston some division between residential and commercial property is achieved precisely through contractual deed restrictions. As far as nuisances are concerned – air and noise pollution – these can be handled through the civil tort system. At the same time, it would probably not be politically wise to push for the total abolition of building codes. Regulations pertaining to structural integrity and safety of buildings, or which are necessary to maintain the utilities grids, would effectively arise in a free market anyway, and though the “pure” course may be to abolish them and let the market work, the politically practical course is to abolish those regulations that are purely anti-competitive (that is, those regulations whose main purpose is to force homebuilders into hiring contractors and paying for licenses) and those regulations that are merely aesthetic in nature. All these principles can be largely incorporated into law at the town and county levels.

The final issue I would like to deal with is asset forfeiture. Asset forfeiture is the police practice of seizing property of which there is any suspicion it might have been used in a crime, whether or not the owner is charged with, let alone convicted of, anything. Asset forfeiture is a grave problem in America today and a galling injustice, often used to persecute the poor, politically disfavored, and racial minorities. Asset forfeiture must be abolished altogether: police should be allowed to seize a person’s assets only after he is convicted of a crime, and if seizure of those assets is part of the sentence, being necessary to offer restitution to the victim of the crime. Drumming up popular support for an end to asset forfeiture should not be difficult, as the issue is now on the political radar screen, given the dozens, if not hundreds, of horror stories about asset forfeiture abuse out there now. (To those of you interested in looking up some of them, I recommend James Bovard’s book Lost Rights.) But abolition of asset forfeiture is not as simple as it sounds. Many police departments are expected to cover significant portions of their expenses from seizures. To eliminate the need for seizures and to maintain police departments in their legitimate function of stopping crime, we should increase police budgets where necessary; by doing so, we also show that we are not anti-government zealots – we support government wholeheartedly in its legitimate functions.

I hope the foregoing discussion has given you all part of a picture of what one state will look like within a couple of decades after the Free State Project arrives. Perhaps it has even given some of you ideas on what to start working for right now in Vermont. The solutions I suggest are my own, not those of the Free State Project, but I cannot help but think that some inevitable results of the Free State Project will be an end to abuses of eminent domain and asset forfeiture and the replacement of zoning with contractual and civil solutions in many jurisdictions in our state. Should Vermont – or perhaps even New Hampshire or Maine – end up as our state, I would look forward to working hand-in-hand with you all on these issues.

Thank you very much.


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