Individual Property Rights

After listening to https://www.honestlypod.com/podcast/episode/2d0698d3/affirmative-action-gay-rights-and-free-speech-what-the-supreme-courts-rulings-mean-for-america

The law was not argued on property rights. Why not?

I respect Bari Weiss and often listen to her podcast even though she favours ‘left’ public policies. Her guests are always intelligent, well informed, and possess the ability to deliver an argument or perspective on an issue effectively. The linked episode is typical if the high quality of her show.

In the podcast, a debate ensued as to whether a cake maker in Montana had the right to refuse to make a wedding cake for a gay couple. The debate addressed First Amendment rights and the religious convictions of the business owner. Property rights were not mentioned.

It struck me that an obvious line of argument would have been based on Individual Property Rights, but it was entirely absent. Puzzled, I asked BINGchat: “Does the American constitution protects individual property rights?” and “How of property defined?”

Reply:

Yes, the United States Constitution protects someone’s property rights through the Fourth and Fifth Amendments. The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. The Fifth Amendment protects the right to private property in two ways. First, it states that a person may not be deprived of property by the government without “due process of law,” or fair procedures1. The Constitution protects property rights through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use without just compensation.”2

John Locke defined property as one’s person (body, mind and effort) and material assets. He built on the concept of self-ownership when he used it to explain how one derives a right to possess objects outside of one’s self, his famous labor theory of property1.

John Locke’s definition of property would have been a good argument if it was part of the American Constitution and, consequently, inform all legal statutes as they might apply to civil rights. For example, the cake maker owns her business and its assets: her creativity, labour, ingredients and the equipment (capital) used to make the cake. Under Locke’s definition of property, the owner would be free to pick and chose which customers to serve. The gay couple are also free to take their assets (money) and business elsewhere. No harm done.

Yet, public resources (tax dollars too) were spent

Why was this standoff between the two parties tried at public expense if no other taxpayer had “a dog in the fight”. If American constitutional law had defines property as John Locke had, the Montana case would never have gone to court.

The one major criticism I have of the Canadian Charter of Rights and Freedoms is that its authors also skirted the topic of property rights. Evidently, they feared that it would limit the powers of the state by tying its hands to a clear and unambiguous definition of property as Locke had defined it. It's hard to claim service to “the greater good” when taking land from a legitimate property owner under Eminent Domain statutes. According for BINGchat….

Eminent domain is a constitutional right that allows the federal, state, provincial, or municipal government to seize private land or property for public purposes without the owner’s consent. The owner receives just compensation, i.e., the fair market value of the property in return¹. Eminent domain laws are created by the federal and state legislatures².

If the courts had decided the Montana case in favour of the gay couple, would the battle over a wedding cake have been just a smaller example of Eminent Domain, and to exclusively serve the growing minority community of Pride supporters? Does this serve “public purposes” or just the vocal LGBT community?