For the first time in 16 years the U.S. economy was reclassified from “totally free” to “mostly free.” But wait: The United States was totally free economically until 2010? That’s enough to suggest that the Index focuses on quite a narrow range of “economic freedom” criteria, rather than looking critically at the forms of State intervention most structurally important to the survival of big business and corporate power.

For example, by any valid measure of economic freedom, the passage of the WIPO Copyright Treaty, the Uruguay Round TRIPS (Trade-Related Aspects of Intellectual Property Rights) Accord, and the Digital Millennium Copyright Act would have been considered an upward surge in statism and protectionism unequaled since (at least) the Smoot-Hawley Tariff. “Intellectual property” is every bit as much a form of protectionism as are tariffs. Patents and copyrights serve exactly the same protectionist function for transnational corporations that tariffs did for the old national industrial corporations; in both cases they restrict who is permitted to compete in offering a given good to a given population.

But among the inside-the-Beltway “free market community,” Heritage is one of the staunchest advocates of global “intellectual property” enforcement expansion. Indeed, two lines out of six in its summary concerning its metric for “Property Rights” in the United States are taken up by this: “A well-developed licensing system protects patents, trademarks, and copyrights, and laws protecting intellectual property rights are strictly enforced.”

One-Sided Index

There are other suggestions of the one-sided nature of the Index, as well. For example, under “Labor Freedom” it simply states that “dismissing an employee is not burdensome.” Never mind for the moment that, from the standpoint of an employee, a bit of contractual security might be a good thing. (I doubt if the people at Heritage would generalize this disdain for contracts to all their other commercial dealings.) What’s important is what the article doesn’t say: “Quitting without notice is not burdensome.” In fact it is not burdensome; workers in most states are at-will employees unless a union contract specifies otherwise. But Heritage doesn’t consider the contractual burden on the worker or lack thereof a sufficiently important issue even to bear commenting on—and this in a section titled, mind you, Labor Freedom, not Employer Freedom.

The problem is that an index, ostensibly put forward as a general survey of economic freedom as such, is really a survey of economic freedom primarily as it affects the minority of the population that owns considerable amounts of capital and employs others. The idea that being employed is an economic activity, and that those who are employed have economic interests as much as those who do the employing, doesn’t even appear on the radar.

Yet another example of the Index’s bias is its “concerns” regarding bailouts of automakers over “expropriation and violation of the contractual rights of shareholders and bondholders.” Bill Beach, director of the Heritage Foundation’s Center for Data Analysis, laments that “the rule of law declined when the Obama administration declared some contracts to be null and void. For example, bondholders in the auto industry were forced to the back of the creditor line during bankruptcy.”

But note the glaring lack of concern for contractual rights guaranteed under GM’s contracts with the UAW. This one-sided concern with impairment of the obligation of contracts is fairly widespread on the “free market” right. The same people who protested the loudest about bailout “blackmail” in interfering with CEO salaries and benefits, oddly enough, were by and large also the source of the most strenuous calls for using Washington bailout money as a hammer to “impose discipline” on auto workers. So apparently, for a certain breed of “free market” advocate, the differential between a GM and Toyota assembly line worker is problematic—but the differential between a GM and Toyota CEO isn’t. What’s that thing I was saying before? Contractual security is a good thing—for everybody but workers.

This shortcoming is compounded by Heritage’s endorsement of Bush Treasury Secretary Henry Paulson’s original TARP program. Stuart Butler and Edwin Meese, in a 2008 article titled “The Bailout Package: Vital and Acceptable,” did express concerns lest the bailout take the form of a blank check—to the government, that is.

So they favored TARP, as such—a Hamiltonian program of using taxpayer money to prop up the bubble-inflated value of financial assets and preventing them from being marked down to market value. They just objected to any conditions on how the free money could be spent once the banksters got hold of it. I wonder how they feel about workfare. I understand that it was probably different people composing the different passages in question, but still it would be nice if the right hand knew what the further-right hand was doing.

Ignoring Primary Interventions

The Index fails to distinguish between the primary, structural forms of government intervention that prop up corporate power and the secondary, ameliorative forms of intervention that attempt to moderate its side effects. The State enforces a whole host of artificial property rights and artificial scarcities that serve as sources of economic rent to privileged firms, and maintains all sorts of regulatory cartels. The cumulative effect of these privileges, artificial scarcities, and cartels is to sustain corporate power on a global scale and create vast disparities in wealth.

These forms of intervention, these primary grants of privilege, don’t show up very prominently on the Index of Economic Freedom. What does show up is mainly the kinds of fiscal and welfare-state interventions that serve to limit the exercise of State-granted privileges and make corporate power less galling to average people. Is it only “statism” when it benefits someone besides the rich?

In fairness, while Heritage supports many of the legal privileges that serve as entry barriers at the national level, the Index does at least acknowledge barriers to small business formation at the state and local levels, comparing them favorably to other places: “The overall freedom to start, operate, and close a business, regulated primarily at the state level, is still strongly protected [in the United States]. Starting a business takes six days, compared to the world average of 35 days. Obtaining a business license takes less than the world average of 218 days. . . .”

The same critique applies to other indices of “economic freedom,” as well. For example, like Heritage, the Economic Freedom of the World Index (Fraser and Cato institutes) treats voting for anything called a “free trade agreement” as a proxy for supporting free trade. [Editor's note: See comments for correction.] Economist Dean Baker ridicules mainstream journalists for taking the “free trade” label at face value when the primary purpose of such agreements is to boost “intellectual property” protectionism rather than to reduce tariff protectionism. In the introduction to The Conservative Nanny State, Baker writes:

[N]ews reports routinely refer to bilateral trade agreements, such as NAFTA or CAFTA, as “free trade” agreements. This is in spite of the fact that one of the main purposes of these agreements is to increase patent protection in developing countries, effectively increasing the length and force of government-imposed monopolies. Whether or not increasing patent protection is desirable policy, it clearly is not “free trade.”

It is clever policy for proponents of these agreements to label them as “free trade” agreements (everyone likes freedom), but that is not an excuse for neutral commentators to accept this definition.

Nicholas Hildyard had a pretty good handle on what’s actually entailed in the neoliberal “free market” agenda promoted by these indices. The effect of the agenda “has not, in most cases, been to diminish either the state’s institutional power or its spending. Instead, it has redirected them elsewhere. It has also strengthened the power of many Northern nations to intervene in the economic affairs of other countries. . . .”

Of the kind of “privatization” that prevailed, for example, under Chile’s Pinochet and has since been promoted by assorted “structural adjustment” programs, Hildyard wrote:

While the privatisation of state industries and assets has certainly cut down the direct involvement of the state in the production and distribution of many goods and services, the process has been accompanied by new state regulations, subsidies and institutions aimed at introducing and entrenching a “favourable environment” for the newly-privatised industries. [“The Myth of the Minimalist State,” The Corner House, March 1998]

In practice, such “privatization” involves, first of all, spending taxpayer money on upgrades of State property to entice corporate buyers to take it off their hands—with the new outlays to make the property salable frequently exceeding the purchase price. The bidding process itself for State-owned industries and utilities has usually been governed by what Joseph Stromberg calls “funny auctions, that amounted to new expropriations by domestic and foreign investors” (“Experimental Economics, Indeed,” Mises.org, Jan. 7, 2004). The first order of business, subsequently, is massive asset stripping by the new corporate owners. And as Hildyard suggested, the newly “privatized” functions are carried out within a web of special regulations and protections to make sure the “private” firms are insulated from anything resembling genuine market competition.

A genuinely libertarian privatization policy, as recommended by Murray Rothbard in “Confiscation and the Homestead Principle” (Libertarian Forum, June 15, 1969), would treat State-owned utilities as the homesteads of those working them.

The same is true of so-called “deregulation,” which (as Hildyard pointed out) can more accurately be called reregulation. The nature of most so-called utility deregulation can be illustrated by the mid-1990s electrical “deregulation” in Texas, home of “free market” champions like Dick Armey and Tom DeLay. Writing at Mises.org, Tim Swanson stated:

[I]n the mid-90s, regulators, consumers and energy producers began to rearrange the market for “deregulation” in Texas. Incumbent providers such as TXU and Reliant were restructured in the name of free markets, but when the dust cleared, the only winners were members of the political class and corporations that had been State-sanctioned monopolies prior to the “deregulation.”

TXU was separated into two companies, Oncor and TXU Energy. Oncor was given the monopoly on all services including meter reading, energy delivery, etc. Additionally they own all of the poles and wires and are protected by law from competition. TXU Energy became a billing company (and owner of power plants), merely forwarding all of the customer service questions and problems to Oncor, and therefore providing no services themselves.

This is akin to the following: splitting AT&T into two separate companies, one (Nexis) that owns all of the cables, wires, PBXs, switching stations, call centers, etc. and provides all of the services, repairs, installations, etc., and the other company (Willy) whom [sic] simply sends you a bill at the end of the month, providing no value-added service.

Not only is it not deregulation (the same players exist with State protection) but more overhead is created through the creation of another billing company. [“Texas Sized Tomfoolery,” Sept. 9, 2003]

When the mainstream press and mainstream politics identify the narrow analysis associated with the indices as “economic freedom,” it’s no wonder that most people are wary of “free markets.” If I didn’t know better—if I didn’t know that real free markets were like kryptonite to corporate power—I’d hate them myself.

No one can honestly believe that Louisiana’s flower cartel is necessary to protect consumers from renegade flower sellers. Rather, it is a classic case of protecting favored groups at the expense of consumers and entry-level entrepreneurs.

Such is the state of economic liberty in America today. Across the nation, the basic right to earn an honest living is under attack. Legislators and bureaucrats are teaming up with entrenched special interests to create needless obstacles to countless entrepreneurs’ pursuit of the American Dream. In the past few decades there has been a nationwide explosion of protectionist regulations—while there were about 80 occupations with such barriers to entry in 1981, today there are over 1,000.

An Institute for Justice (IJ) case that recently attracted international media attention vividly illustrates the uncontrolled growth of occupational licensing and the outrageous lengths that a cartel will go to protect all facets of its business from the most harmless of trades.

Mercedes Clemens was threatened with thousands of dollars in fines and criminal prosecution unless she stopped . . . massaging horses. In Maryland two powerful groups decided to monopolize the growing field of animal massage by requiring all practitioners to spend four years in veterinary school—where massage is not even taught.

Suggesting that only people with veterinary degrees are capable of massaging animals is like suggesting that only people with medical degrees are capable of massaging humans. Preventing Clemens—who is a licensed human-massage therapist and certified in equine massage—from working in her chosen trade has absolutely nothing to do with consumer or animal safety and everything to do with the financial interests of the veterinary cartel.

In 2004 the Tenth U.S. Circuit Court of Appeals wrote in Powers v. Harris, “[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” And for decades, following the instructions of the U.S. Supreme Court, federal and state courts have stood by while legislators engage in this “favored pastime” at the expense of consumers and entrepreneurs.

Government Protects Special Interests

In the absence of meaningful judicial supervision, politicians have gone to almost any imaginable length to protect special interests. When a powerful lobby demands protection from competitors, governments have been all too willing to invent—and courts all too willing to accept—patently ludicrous excuses for shutting down entrepreneurs. A court upheld Louisiana’s florist-licensing scheme, for example, because requiring florists to take a test, which would be graded largely on the subjective beauty of their floral arrangements, might help protect the public from “infected dirt.”

The true victims of this new “favored pastime” are people like Clemens and countless other Americans, honest individuals whose lives have been turned upside down solely to protect the politically powerful. Such examples are seemingly endless.

In Texas, all computer-repair technicians must now become private investigators. “If you’re investigating or analyzing data, then you should need a little more credentials than someone who just repairs computers,” the legislative sponsor said. The PI license requires a criminal-justice degree—or a three-year apprenticeship under a licensed private investigator. If a consumer knowingly takes his computer to get repaired by an unlicensed specialist, he faces thousands of dollars in fines and a year in jail. This law no doubt benefits special interests, but those benefits come directly at the expense of ordinary repair technicians and their customers.

A new law in Philadelphia will make it a crime in the coming weeks to talk about the Liberty Bell for money without the government’s permission. Unlicensed tour guides will be subject to hundreds of dollars in fines for talking about the place where the Declaration of Independence was written. Perhaps the most well-organized cartelization effort underway in the United States today is in the interior-design industry. A powerful faction of insiders has already put thousands of its competitors, mainly middle-aged and elderly women, out of work.

The American Society of Interior Designers (ASID) represents less than 3 percent of all designers, but its members have designated themselves as spokespeople for the entire industry. In over 30 years of lobbying, ASID has never presented a single shred of evidence to support its extraordinary claim that literally “every decision an interior designer makes affects life safety and quality of life.”

ASID has been relentless in teaming up with legislatures coast to coast in its strategy for total cartelization. IJ has documented these efforts in a study titled “Designing Cartels.”

Such laws exist today for one reason: Our nation’s judicial system fails to protect the right to earn a living. Courts have decided that this fundamental right—economic liberty—is simply not as important as other rights, and less-important rights are thus not subject to meaningful judicial scrutiny and rarely are afforded protection under the law. If the government can simply dream up a conceivable reason for violating economic liberties, even if that reason is based on no facts, the regulations are generally upheld. Amazingly, courts will even help by inventing their own hypothetical rationales for economic protectionism. This system does not just stack the deck—it gives the politically powerful a hand full of jokers.

Thankfully, entrepreneurs are fighting back. Taxicab drivers, African hair-braiders, sign-hangers, waste haulers, casket sellers, and others have battled the odds (with help from IJ) to strike down occupational-licensing schemes.

Mercedes Clemens’s lawsuit has already caused one of the licensing boards to backpedal. The Philadelphia tour guides, now represented by IJ, had a hearing in federal court on October 6. In Texas, computer-repair technicians and interior designers are standing up for their constitutional rights.

F. A. Hayek famously wrote that “the great aim of the struggle for liberty has been equality before the law.” That is precisely what the fight for economic liberty is all about.

What a difference a lousy U.S. Supreme Court decision makes.

Now state legislatures, city councils, and Congress are up in arms about the subject. It is a true water-cooler topic. Newspapers, which in the past typically ignored the “abuse” of eminent domain when they wrote glowing reports about “economic development,” are touching on the troubling ramifications of Kelo v. City of New London, in which a 5–4 Court majority declared in June that the city may hand over unblighted private homes near the waterfront to a developer for high-end condos and other private uses. Opinion polls show that an overwhelming majority of Americans oppose the ruling.

The word abuse is in quotation marks above because eminent domain is abusive per se: it compels the sale of private property, and since the sale is forced, there can be no “just compensation” as required by the Takings Clause in the Fifth Amendment to the U.S. Constitution. In most discussions,“abuse” pertains exclusively to takings not for “public use,” as the clause requires, but for any vague “public purpose” that might be carried out by the new private owners of the property.

The Court’s decision, however wretched, contained an important blueprint for reform. The majority wrote: “We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” And Americans are taking the Court at its word.

Already, one state—Alabama—has enacted a law prohibiting the use of eminent domain to increase tax revenue or for private development. Delaware has enacted a law that “requires eminent domain only be exercised for the purposes of a recognized public use.” But the Washington, D.C.-based Institute for Justice (IJ), which argued Kelo before the Supreme Court, says that law essentially upholds the ruling. The Institute reports that, as of August, 31 states have taken some kind of action, with 17 legislatures introducing bills, seven announcing plans to do so, and other states introducing constitutional amendments or setting up commissions to study ways to stop eminent domain from being used for private development.

Unfortunately, while citizens are reacting to the decision, so too are cities, which are taking Kelo as carte blanche for the most aggressive redevelopment plans. The New York Times on July 30 explained that “the ruling has emboldened some cities to take property for development plans on private land. . . . [I]n Santa Cruz [Calif.], for example city officials started legal action this month to seize a parcel of family-owned land that holds a restaurant with a high Zagat rating, two other businesses and a conspicuous hole in the ground and force a sale to a developer who plans to build 54 condominiums.”

Members of Congress also have proposed some limited restrictions on eminent domain. As the Environment and Energy Daily reported on July 19, “The Congressional Western Caucus has formed a new task force meant to defend property rights in light of a controversial June Supreme Court decision on eminent domain, as members continue to propose legislation to lessen the effects of the ruling. ”The goal, according to the publication, is to create a united front in Congress, given that six bills have been proposed.

“Sen. John Cornyn, R-Texas, has introduced a . . . bill (S. 1313), which would clarify that the power of eminent domain should be available only for public use and specify that economic development does not count as a ‘public use,’ ” according to the article. Also, the House voted 365 to 33 denouncing the decision, a resolution that has no teeth. However, the Washington Post reported that the House voted 231 to 189 to ban the use of eminent domain on projects that involve federal housing or transportation dollars.

The legal strategy will vary from state to state, given our federalist system and the fact that each state finds itself in a unique legal and statutory position with regard to eminent-domain uses for economic development. In six states—Kansas, Connecticut, Maryland, Minnesota, New York, and North Dakota—the highest courts have already ruled in favor of cities in cases of eminent domain for private use. That means that residents of those states must live with the standard set up in Kelo—that is, basically anything goes. Nine state supreme courts have addressed the issue and come down on the side of property owners. These are Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, Michigan, and Washington. But even in these states the situation is shaky for property owners. Many of the decisions are old, and some of the states have statutes that explicitly allow eminent domain for economic development, Dana Berliner, attorney for IJ, explains.

“The remaining 35 states are up in the air,” Berliner said. “Most haven’t looked at [eminent domain] in decades, and most haven’t looked at it since the modern practice of taking property just for business development. So state supreme courts need to revisit this issue now.”

Even the states with the best protections could use new laws or constitutional amendments banning the practice of eminent domain for private uses, she argues. In her report looking at such abuses from 1998 to 2002, Berliner found that eminent domain for private use had been carried out or threatened in 41 states, and she later found some other states to add to that list. That shows the degree to which this is a nationwide problem.

Poletown Decision Overturned

Last year the Michigan Supreme Court overturned the infamous 1981 Poletown decision. The original decision set the stage for the abuses evident in New London. The cities of Detroit and Hamtramck used their power of eminent domain on behalf of General Motors, which wanted to build a Cadillac assembly plant on the site of a 425-acre neighborhood—a thriving middle-class area filled with nicely kept homes, businesses, and churches.

The cities didn’t argue that the neighborhood, named for the Polish immigrants who first settled the area, was blighted. Rather, officials argued that the economic fate of the depressed Detroit region was at stake if eminent domain wasn’t used to help GM. The facility was built, though it never performed up to promises. The ruling was on the books 23 years until Michigan’s high court revisited it in July 2004. The Court described the original Poletown decision as a “radical departure from fundamental constitutional principles. . . . [I]f one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, ‘megastore,’ or the like. ”That decision reads like Justice O’Connor’s dissent in Kelo. Unfortunately, Michigan is the rare state where the court has spoken so clearly.

Several states don’t go nearly as far as Michigan, but require that governments prove that blight exists before invoking eminent domain. That is the standard in California, but I’ve found it to be an ephemeral protection at best.

Following, Kelo the California Redevelopment Association (CRA), in its overheated response to efforts to restrict eminent domain, argued that a proposed constitutional amendment “is a solution in search of a problem. California is not Connecticut.” The CRA emphasizes that the blight requirement keeps cities from abusing the process.

Yet my reporting in Orange County and elsewhere has shown the degree to which this is a genuine problem desperately in need of a substantive solution, as city governments routinely declare nice neighborhoods blighted in order to clear them away and build tax generating facilities.

IJ’s Berliner echoes that view, pointing out that property owners who challenge a blight designation in California often win, but it is so costly and difficult to fight that challenges are rare. It’s similar in other states with blight requirements.

“The statutory definition of blight in Illinois is broader than the Mississippi River at its mouth,” said Illinois state Sen. Steve Rauschenberger, who recently sponsored legislation to ban eminent domain for private uses, according to the Associated Press.

Berliner, speaking before the Illinois Assembly, offered specific advice to protect property owners in Illinois. One idea gets to the heart of the blight-protection problem:

“Illinois needs to . . . remove from the various definitions of blight factors that are too vague or allow condemnation simply for what local planners think is a better use.” Indeed, blight becomes whatever government officials want it to be. They have declared newer housing tracts, decent shopping centers, upscale buildings with chipping paint, and empty desert land as “blight.” In Mammoth Lakes, California, a rural resort community in the Sierras, officials called the downtown blighted because of excessive urbanization—something so absurd that even the courts overturned that finding.

The California Model

In California two main reform efforts failed in the final days of the legislative session. Unsurprisingly, neither challenged eminent domain per se. The first, introduced by state Sen. Tom McClintock and Assemblyman Doug LaMalfa, proposed an amendment to the state constitution. Here’s the key language: “Private property may be taken or damaged by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that no reasonable alternative exists. Property taken or damaged by eminent domain must be owned and occupied by the condemnor or may be leased only to entities regulated by the Public Utilities Commission. All such property must be used only for the stated public use.”

The second, introduced by Assemblywoman Mimi Walters, offered a simple statutory improvement: “This bill would provide that ‘public use’ does not include the taking or damaging of property for private use, including, but not limited to, the condemnation of nonblighted property for private business development.” If passed, the legislation would reinforce that the Connecticut standard does not apply in California, but it would not fix the abuse of the blight provisions by zealous California cities.

In addition to California, IJ reports that Texas and four other states are pursuing a constitutional amendment.

The Reason Public Policy Institute has offered sample state legislation. As Reason explains, the simplest method is to “delete the statutory authority for such uses of eminent domain. . . . [I]n 2004, Utah simply removed the authorization for eminent domain from its act giving powers to redevelopment authorities. . . . Three other types of provisions that also discourage the abuse of eminent domain are (1) allowing a former owner to regain ownership of condemned property if the government fails to use it within a given period of time; (2) time limits on blight or redevelopment designations; (3) attorneys fees for condemnees challenging the validity of takings.” Reason also proposes possible language that specifically prohibits eminent domain for private business.

The final approach, described by Reason, would ban eminent domain for economic development, and includes a definition of such as “any activity to increase tax revenue, tax base, employment or general economic health.”

Various state bills typically embody one of these forms. IJ’s list of proposed state legislation includes Colorado, which would limit the ability of agencies to declare a property blighted; Massachusetts, which would ban eminent domain unless the property is blighted; Minnesota, which would forbid using eminent domain to transfer property to a “nongovernmental entity without the power of eminent domain”; and New Jersey, which would forbid eminent domain under redevelopment law.

Many states have several proposals circulating at once. The Connecticut legislature defeated one measure that would prohibit the taking of residential dwellings for use “in a municipal development project that will be privately owned or controlled.” But the governor called on the legislature to issue a moratorium on eminent domain until the law is revised.

Even cities are getting in on the act. The city of Orange, California, voted to express opposition to the Kelo decision. Although such resolutions by city councils have no real weight, what does have weight is the understanding that council members will vote against eminent-domain actions. In California 90 percent of redevelopment agencies are run by the city councils and state law requires a supermajority of members to invoke eminent domain.

Most California city councils have five members. If every one of those councils had two members opposed to eminent domain for private use, these projects would always be stopped. Cities can also pass ordinances and change their charters to limit eminent-domain abuses. Those ordinances would have language similar to the language in Reason’s model statutes.

The best response in California has come from Anaheim. Mayor Curt Pringle announced, immediately following the Kelo decision, that his city would never use eminent domain for private development. These words are backed up not only by an anti-eminent-domain council majority, but also by several years of taking an alternative approach that contradicts the conventional wisdom offered by redevelopment agencies. Anaheim has refused to use subsidies and eminent domain, preferring to expand free-market opportunities for redevelopment.

For instance, the city targeted an area that it perceives as the next downtown. It is an area comprising onestory warehouses near the baseball stadium and hockey arena. So the city council said to developers: Come bring us your plans for the area. Build what you want. The only thing we will do is change the zoning so virtually anything can be built there. Sure enough, there are fascinating development proposals for the site.

This, ultimately, is the alternative to the redevelopment mindset, and the antidote to wanton eminent domain.

Until cities across the country embrace the Anaheim model, or until states impose legislative reforms that at least restrict eminent domain, there is only one avenue left to citizens who face such abuses. They can organize.

In Garden Grove, California, I watched hundreds of residents turn out to oppose a plan that would have leveled their neighborhood through eminent domain to allow for a theme park. Council members heard their voices and decided to stop the plan. In Lakewood, Ohio, where the city wanted to clear lovely historic homes along a park to make way for new condos and shopping, residents stopped the plan through a referendum and eventually succeeded in recalling the mayor.

It would have been best had the Supreme Court stopped the abuse of American homeowners and the Constitution, but even with this bad decision Americans have many avenues to pursue. The best news is that a backlash is in full swing. The key now is to keep the movement going until residents of every state are protected in the way the nation’s founders envisioned.

In real life much of the Great Plains was truly open range and the plentiful grass that stretched from the Texas Panhandle to Montana and the Dakota Territories offered wonderful grazing after the elimination of the buffalo and the military’s removal of the Native American populations. As the railroads stretched west and created a means to transport cattle east to markets, the free-range cattle industry sprang up in the 1870s and 1880s. As homesteaders spread west, however, violence occurred between the two groups as the cattlemen sought to keep homesteaders off “their” range and the homesteaders fenced off streams and plowed up pastures for their crops. The conflict between free-range cattlemen and homesteaders (portrayed memorably in the 1958 western Shane) was more common than the “intramural” conflict between cattlemen shown in Open Range.

North of Texas much of the Great Plains was federal land. The land that wasn’t federally owned was generally in noncontiguous blocks: “checkerboard” sections alternating along railroad lines granted to the companies to subsidize the building of the railroads, sections set aside for specific public purposes such as schools and the like. Someone who wanted to purchase large tracts of land outside Texas could do so only from the federal government, and it would not sell. Federal land for grazing could be acquired only in relatively small tracts through the homestead laws, which required actual occupation and residency. Cattle ranchers could not purchase the land they used.

Western cattlemen thus faced exactly the conditions that today we describe as producing the “tragedy of the commons.” Most often used to describe environmental problems, the tragedy occurs when unregulated access to a common resource produces overuse. Private property solves the tragedy because each property owner receives the benefits and bears the costs of his actions, forcing the owner to be responsible.

Since they were denied land ownership as a means of solving their common property problems, cattlemen formed range and roundup associations to do the job instead. These associations organized cooperation on the roundups, greatly reducing costs, and wrote and enforced rules which prevented most of the problems that come with the lack of the ability to exclude others. Members were required to contribute bulls, ensuring the herds would continue to grow; contribute labor to the roundups, ensuring that everyone paid their share; and help pay for stock detectives to stop rustlers. All these contributions were proportional to their herd sizes, making the scheme fair. As the associations developed further, they also provided disease control, common facilities at railroad stations (pens and livestock inspectors), and brand registries to help identify cattle ownership.

The cattlemen’s associations were not perfect substitutes for land ownership, however. They could do nothing to control nonmembers, as their only sanctions were to threaten expulsion from the association. This can be seen in the legendary cattlemen–sheep-herder battles of the West, which came about because sheep herders had no need of the associations’ services and so were immune from the pressures the associations brought to bear on their members. As homesteaders continued to enter the western range, the cattlemen found themselves unable to protect “their” range from the intruders.

The Transition from Ranch to Farm

Farming is often more lucrative than ranching, at least where the soil and water supply justify it. Converting at least some of the Great Plains to farmland from ranchland made a great deal of sense. Converting as much of it as the homesteaders did, and converting it in the small parcels allowed under the homestead laws, did not make sense.

Most important, however, the conversion of open range to farmland imposed a cost on the ranchers (less land for the cattle) without allowing them any corresponding benefit. Frustrated in their attempts to buy the land, the cattlemen of the northern Great Plains saw the land and water they had been using taken away without compensation by the new arrivals.

This problem is captured in Shane, an unusual western that allows its villain, the head open-range cattleman William Ryker, to explain to the heroes, homesteader Starrett and gunslinger Shane, why the cattlemen feel entitled to the land. After his offer to buy out Starrett’s homestead is rebuffed and Starrett asserts his rights to the land, Ryker explodes.

Right? You in the right! Look, Starrett. When I come to this country, you weren’t much older than your boy there. And we had rough times, me and other men that are mostly dead now. I got a bad shoulder yet from a Cheyenne arrowhead. We made this country. Found it and we made it, with blood and empty bellies. The cattle we brought in were hazed off by Indians and rustlers. They don’t bother you much anymore because we handled ’em. We made a safe range out of this. Some of us died doin’ it. We made it. And then people move in who’ve never had to rawhide it through the old days. They fence off my range, and fence me off from water. Some of ’em like you plow ditches, take out irrigation water. And so the creek runs dry sometimes. I’ve got to move my stock because of it. And you say we have no right to the range. The men that did the work and ran the risks have no rights? I take you for a fair man, Starrett.

In this short passage, Ryker manages to deliver a concise summary of Lockean property-rights theory: the land belongs to the ranchers because they “made” the range.

When Starrett objects that Ryker isn’t taking into account the trappers and Indian traders who were there first, Ryker dismisses their claims by the derisive snort: “They weren’t ranchers.” Starrett then brings out his best argument: “You talk about rights. You think you’ve got the right to say that nobody else has got any. Well, that ain’t the way the government looks at it.”

Starrett and the homesteaders may not have had a sophisticated philosophical argument, but they had a winning one. The government didn’t recognize the ranchers’ property rights and actively sought to undermine them. Not only did the federal government forbid the sale of public land to ranchers, it subsidized the small holders whose fences cut the cattlemen’s stock off from water. Far from being the inevitable clash of the contrasting character of the cattleman and the farmer, the problems between the open-range cattlemen and the homesteaders were the direct result of federal land policies.

Range Wars

The conflicts that sprang up on the northern Great Plains were no Hollywood screenplays. Homesteaders shot cattlemen; cattlemen shot homesteaders; vigilantes chased rustlers; and rustlers chased cattle. Most notoriously, in 1892 a group of prominent cattlemen in Wyoming set out to rid themselves of a group of homesteaders in Johnson County. While the cattlemen portrayed the homesteaders as rustlers, the history of the “Johnson County War” suggests the real conflict was over the homesteaders’ land and water claims on range the cattlemen considered their own. The conflict continued for years, including passage of repressive legislation allowing the Wyoming Stockgrowers’ Association to seize nonmembers’ property. Despite their virtually total control of Wyoming’s territorial and state governments, the cattlemen could not eradicate the homesteaders because juries routinely refused to convict on rustling charges.

The cattlemen determined that extralegal methods were needed. They assembled a team of gunmen, taking along a doctor and a newspaper reporter for good measure. A special train was hired to transport the raiding party north, and a death list of 100 rustlers and sympathizers was made up. The telegraph wires to Johnson County were cut and the most prominent cattlemen headed for Denver and the nineteenth-century version of “plausible deniability.”

Fortunately for the citizens of Johnson County, the leader of the expedition made some critical mistakes. Instead of immediately seizing the local militia arsenal, he allowed the expedition to get bogged down in a siege of a ranch where two suspected rustlers were staying. This allowed the rest of the county to learn about the attack and to arm themselves. Confronted by an armed population, the invaders took refuge in another ranch house. Just as the locals were about to set fire to the house, the U.S. Cavalry rode over the hill, and rescued the invaders. Legal maneuverings by the invaders’ defense team kept the matter from ever being resolved in court and none of the invaders was ever punished. Considerable bloodshed was averted only by the bad judgment of the invaders’ leadership. The Johnson County War was the logical culmination of the federal land policies that prevented ranchers from acquiring private property in western lands.

The Private Property Alternative

The open range was not the only way to organize western lands, however. Texas, which had been an independent country before it entered the union, had no federal land. All its public land was owned by the state. In need of cash after the Civil War, the Texas state government was willing to sell land in large parcels, allowing Texas ranchers to create the contiguous spreads they needed for their herds. As a result, the Texas panhandle was soon privatized into large ranches, including the famous XIT Ranch, whose brand stood for “Ten in Texas” and referred to the number of counties the XIT’s land covered.

The Texas ranches invested in barbed wire (a recent innovation), accurate rifles for their cowboys, improved stock, and internal improvements such as windmills that increased the carrying capacity of their range. The rifles allowed a “shoot to kill” policy on rustlers that resulted in low levels of rustling; the fences allowed the benefits of the expensive bulls the ranchers imported to be kept for themselves.

Most important, because they owned the land, the Texas ranches received the benefits from converting it from ranchland to farmland. When homesteaders came to the Texas panhandle, they bought their farms from the ranches. Their farms were of an appropriate size to survive, located on the best farming land, and laid out to avoid cutting off the remaining range from water. Texas ranchers had an incentive to see the farms succeed — successful farms would drive up the price of the remaining ranchland. As a result, farming and ranching peacefully coexisted in the Texas panhandle while war raged in Wyoming Territory.

There are some powerful lessons from the cattlemen’s experience in the West. Unfortunately, these lessons don’t make as exciting a movie as the typical story of gunslingers and range wars.

• Private property rights allow peaceful coexistence of competing land uses. Texas avoided range wars, not because it was populated by more civilized people but because the existence of private property allowed the cattlemen to receive a share of the benefits of the transition to farming.
• Customary institutions can substitute for property rights, but governments can destroy customary institutions. Wyoming’s problems didn’t arise until the federal government began subsidizing the homesteaders’ entry (with “free” land). So long as the only people in Wyoming were cattlemen, the roundup associations were able to prevent the appearance of a “tragedy of the commons.” As more and more people who did not care about the threat of expulsion from the association arrived, the power of the customary solution declined.
• Property rights prevent violence. Private property is a substitute for violence because it allows contracts between willing parties. Where property rights are absent, as in Open Range and Wyoming Territory, the cheapest substitute is often violence.

In his book The Mysteries of Capital, Peruvian economist Hernando de Soto points to the development of property rights in the American west as one of the “missing lessons of U.S. history” that explains why the United States has succeeded in growing rich while few Latin American countries have. Those “missing lessons” make a more accurate story than Hollywood’s version of how the west was won.

The lively and colorful memoirs of Noah Smithwick, nonagenarian, ex-North Carolinian, early Texas pioneer, and eventual Californian, take us back to a time when Americans could grasp essential truths about the nature of money. His book, The Evolution of a State or Recollections of Old Texas Days, reflects the original value system of the mobile and ambitious Americans of the early nineteenth century. Sometime in 1827 Smithwick set off down the Mississippi River on his way to Texas. Owing to some complication arising on the riverboat, he lost his grubstake and had to take a temporary job as a “mechanic” or “finisher” in an industrial concern in New Orleans. He immediately became the object of resentment on the part of the older, established workers for being too productive. Cautioned to go slower, he responded, “Our employer pays me for my time: do I not owe him all that I am capable of doing in that time?” The other workers’ attitude was that “‘No sprig of a boy must presume to set the pace for us,’ and so I was forced to slow down and drift with the tide. This was Labour Unionism in its incipiency.”

Smithwick, born in 1808 in North Carolina, went on to Texas—then part of Mexico—as soon as he could save enough money in New Orleans. He lived through the tumultuous days of the Texan Revolution, the Texas Republic, the Mexican-American War, and the secession crisis of 1861. At that time, the “integral nationalism” that he shared with Governor Sam Houston led him to leave Texas for the more favorable climate of California, where he remained. His eyesight failing him, he dictated his recollections to his daughter in 1899. Smithwick died the next year.

Willingness to Work

Noah Smithwick’s life may well stand as an example of what is rapidly disappearing from the American character. Willing to work hard and with a natural mechanical ability, he tried numerous enterprises: blacksmith, gunsmith, soldier, mill owner, critic of land fraud (perhaps the first big “industry” in Texas), independent inventor of the circular saw, and diplomat. (He negotiated an Indian treaty, promptly violated by both sides.) He would undertake any kind of honest work, which probably explains why he was never much of a politician.

As an active and ambitious pioneer, Smithwick calls to mind the “venturesome conservatives” of the Jacksonian period (to use Marvin Meyer’s phrase). A canny observer of, and participant in, the economic life of early (Anglo) Texas, he makes sharp comments on many of its aspects. Alongside his interesting passages on ethnic and cultural groups he came to know of (Mexicans, Indians, blacks, Germans, and Mormons), some of his best material and most amusing stories focus on the nature of money.

Smithwick describes the crisis caused in the Texas Republic by the government’s issue of inflationary “scrip” (a sort of constant with new regimes). In a textbook demonstration of Gresham’s Law, coin (that is, real money) disappeared. He recalls: “I received a hatful of new, crisp, one-dollar bills in payment for a horse lost in the San Saba Indian fight, which I immediately turned over to a creditor [], without ever having folded them. People would almost rather have anything else than the commonwealth paper.”

In Travis County, people came up with an alternative: “Under those circumstances, we established a currency of our own, a kind of banking system as it were, which though unauthorized by law, met the local requirements. Horses were generally considered legal tender: but owing to the constant drain on the public treasury by the horse-loving Indian, that kind of currency became scarce, so we settled on the cow as the least liable to fluctuation.” Private bills were written against cows (valued at $10 per animal in real money). The system apparently worked well enough as long as it was needed. (Yearlings were also used as a medium of exchange.)

Meet “John Doe”

An even better example of Smithwick’s empirical Texan monetary views is found in his discussion of counterfeiting in the Redlands just before Texan independence. In 1831 he ran afoul of the law in San Felipe. Texas was still part of Mexico, and Smithwick thought it best to shove off to the Redlands, which bordered on the American state of Louisiana. There he came to know the local counterfeiter, on whose premises he worked, although he never took part himself in the counterfeiting portion of “John Doe’s” business. Doe’s product was a copper-sandwich version of the Mexican silver dollar, calling vividly to mind the “Lyndon Johnson” dimes and quarters introduced sometime in the mid-1960s.

Smithwick says of Doe: “There was nothing of the desperado about him. On the contrary, he was pleasant and peaceable and generally liked, and, so far from being looked upon as a malefactor, was considered a public benefactor, in that he furnished the only currency to which the people had access. The country could not be said to be on either a gold or silver basis, copper being the basis of Doe’s coinage. . . .”

Doe would occasionally call in his worn sandwich dollars and restamp them with a veneer of silver. He made doubloons as well. Clearly in touch with the policy debates of his last years, Smithwick remarks: “Doe’s currency furnishes a good example of the practical working of the populist idea: it was all right in domestic transactions, but when they attempted to discharge foreign [that is, non-East Texan] obligations with it, it got them into trouble.”

Doe did not do well when he extended his operations into western Louisiana. On one occasion, however, he won a sizeable bet by stamping a pure silver coin with the same cracked die he used for his copper-sandwich coins and sending a crony into a saloon to spend it. A skeptical bartender announced that the coin was clearly counterfeit, but put to the test, this coin of course proved to be unadulterated silver. (Doe won $500 on the bet.) With this windfall, Doe removed himself west of the Sabine River, where, as Smithwick puts it, “his efforts were more appreciated.”

As a moneysmith, says Smithwick, Doe “added materially to the wealth of the colonies . . . by restamping the old hammered dollars, a single blow of the hammer adding 25 cents to the value of each. There were thousands of them thus rehabilitated.” (There was apparently no debasing with copper in this operation.) Doe was finally put out of business by counterfeiters in Louisiana, who printed up fake U.S. bank-notes and floated them in East Texas. Smithwick observes: “Paper and ink being cheaper even than copper, Doe’s currency was given the go-by.” Copper, after all, was fairly valuable and Doe, at one time, had to break up a still to keep his copper-sandwich undertaking going.

Smithwick’s experience with the counterfeiter suggests a corollary to Gresham’s Law: worse money drives out merely bad money. It is refreshing to read the memoirs of a pioneer who could grasp an essential point about the nature of money and use it to cast light on his times.

This belief that private property rights compromise a “public interest” in “beautification” has generated a host of legal procedures allowing the government to veto an owner’s wishes for the appearance of his property. There are ordinances to prescribe landscaping, boards to oversee alterations to “historic” buildings, bodies to govern changes to trees, committees to dictate the design and color of new buildings, commissions to restrict “eyesores” such as strip shopping centers, and laws–as were proposed in Montgomery County–to prohibit such forms of “visual pollution” as billboards and other types of outdoor advertising.

Beautification Without Coercion

All too often, supporters of such regulation presume that private property ownership threatens beautification. But is that a fair assumption? Consider the case of trees in Houston. Other cities like Charlotte, North Carolina, and Austin, Texas, have statutes controlling alterations to privately owned trees. In March of 1996, Houston passed such legislation to calm the fears of some politicians and citizens that private property owners–particularly commercial developers–were tearing down too many trees. As one angry citizen wrote to the Houston Chronicle (December 1, 1994), “We don’t need our day ruined by a greedy jerk with a chain saw.”

However, in Houston developers and other private owners have had their way with trees for over 100 years. The result? As another writer to the Chronicle (November 20, 1994) pointed out, “[o]ne has only to go to the top of any tall Houston building, look all four ways and admire the forest within the city of Houston, and realize they were nearly all planted by property owners and developers without the help of government or complainers.” That’s right. A forest. Though Houston has undergone decades of the intensive commercial development that frightens supporters of tree preservation, the city remains blanketed by trees.

It wasn’t always. Before private development, Houston contained large areas virtually without trees. One such area included Rice University, in a section of Houston now extensively developed and filled with trees. A July 25, 1996, article in the Rice News pointed out that “[p]hotos from the turn-of-the-century show campus grounds as a coastal prairie where trees were the exception not the rule.” In fact, much of Houston was once part of what the article calls “bald prairie,” prime grazing land in frontier days.

But with extensive private development–both commercial and residential–came trees.2 For example, the December 1995 issue of Bellaire Monthly shows before and after photographs of the same street in Meyerland, one of Houston’s most upscale neighborhoods, first developed in the 1950s. The first photograph shows the neighborhood brand new–and bereft of trees except for a sapling or two in each front yard. In the second photograph, shot from the same location and angle approximately 40 years later, it’s hard to see the houses because of all the mature trees.

That’s not surprising because trees improve the value of property 3 to 5 percent for single-family residential tracts, according to one study cited in a November 13, 1994, article in the Houston Chronicle. The article also pointed out that The Woodlands, a privately planned and developed community 30 miles north of Houston, has been the “top selling new home community in the Houston area in the 1990′s.” Why? “The Woodlands leaves large stands of trees and undisturbed forest underbrush throughout the project,” according to the Chronicle. As one spokeswoman for the Woodlands explained: “When we do surveys, the No. 1 reason people move here is the vegetation and trees.”

In other words, private property rights encourage improvements in the appearance of what people own because the owners benefit. As economists James D. Gwartney and Richard L. Stroup explain: “If private owners fail to maintain their property or if they allow it to become abused or damaged, they will bear the consequences in a decline in the value of their property. . . With private ownership, wise stewardship is rewarded. . . . Private owners can gain by figuring out how to make their property and its services more attractive to others.” It’s just common sense. The people crowding into Home Depot on weekends to buy paint or shrubs aim to make their property look better, not worse.

And what of the homeowner who worries about the tastes of his neighbors? He can choose to buy property in a neighborhood with aesthetic controls enforced through private contracts known as deed restrictions.

Such restrictions, also known as restrictive covenants, are usually initiated by developers to blanket entire subdivisions. The restrictions are enforced by homeowners’ associations, and residents of the subdivision typically have the opportunity to vote periodically, often every 20 or 25 years in Houston, to reinstate, revise, or even cancel the restrictions.

And these rules have teeth. A June 3, 1993, article in the New York Times reported that one homeowners’ association in Seattle successfully sued a husband and wife for painting their house an unapproved color. These defendants, “under a court order and facing the threat of imprisonment or fines of up to $2,000 a day . . . finally agreed to repaint their house. They . . . already had their wages and checking account garnisheed and a lien put on their home.”

And according to the article, paint color is not the only exterior feature that private controls can regulate. Under deed restrictions, homeowner groups can “control a myriad of things, from how often homeowners must mow their lawns to whether to allow basketball hoops in the driveway” and even “that old cars cannot be left in the driveway . . . and that trailers, boats and motor homes must be stored out of sight.”

Deed restriction can also govern fencing, flagpoles, the types and configuration of bedded flowers, and even architectural features, such as facades and the number of stories. On September 7, 1986, the Houston Post explained how a Houston couple was prevented by their civic club from adding a residential second story to their home.

Yes, deed restriction enforcement can be harsh on non-conformists, but non-conformists need not buy into a restricted neighborhood in the first place. As an attorney told The American Legion (February 1996), “These agreements are voluntary contractual arrangements where you have agreed that this is how you are going to live.” As they shop around for property, home buyers can choose how much “aesthetic protection” they desire, without the government deciding for them. Private controls over the appearance of property, however nitpicky, operate through elective contracts with terms explicitly spelled out.

Government Run Amok

Meanwhile, the government’s controls operate through coercion. Everything is up for grabs. Just ask Stephen Page.

According to his article in the Wall Street Journal (December 24, 1994), he had bought a 1.08 acre lot on the seaward side of the Monterey Peninsula in Pacific Grove, California, in 1991 to build his “dream house.” But rather than a dream the city’s design review process gave Mr. Page a nightmare.

“Over a two year period,” Mr. Page recalled, “we endured 20 public hearings regarding the size, shape, height, siting, texture, materials, and color of our proposed residence.” During one of 11 public hearings with the Pacific Grove Architectural Review Board, a commissioner objected to Mr. Page’s plans for the design of his house because “[i]n my former life as a seagull, I was flying up and down the California coastline and saw your house built shaped as a seashell, built out of driftwood and feathers, with the aperture facing out to sea.”

Apparently, Pacific Grove leads the country in protecting the feelings of reincarnated seagulls from the aspirations of property owners.

To appease the city’s wishes for a smaller house, Mr. Page shrank his request for a 4,200-square-foot residence to 3,600 square feet. But then the Pacific Grove Planning Commission and City Council reduced it to a 1,900-square-foot house with a 600-square-foot garage, hardly enough space to justify Mr. Page’s investment at that point of “approximately $1.4 million” for “the lot and carrying costs to date”. When the Planning Commission chairman was asked to justify the 1,900-square-foot figure, he replied, “I pulled the number out of a hat.”

After two years of hearings, Mr. Page sued the city to gain his development rights. A year later the city backed off and voted to allow Mr. Page to build a 3,680-square-foot house with a 600-square-foot garage.

Mr. Page’s story shows how capricious and cruel government inevitably becomes when it sees its purpose–sees justice–not as protecting individual liberties but as trashing them for some crusade like making the community “look right.” As Frederic Bastiat points out in The Law:

The mission of the law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its purpose is to protect persons and property. . . .

If you exceed this proper limit–if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, or artistic (emphasis added)–you will then be lost in uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it on you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

Perhaps at requiring you to dole out an extra $3,400 to put a wall around your yard.

That happened in Galena, Illinois, where historic preservation rules would not let Jim Holman build the wall with $200 worth of railroad ties. Only a stone wall costing at least $3,600 would suffice, the Houston Chronicle (November 25, 1989) reported.

Yes, for appearance’s sake, it’s easy to spend someone else’s money. In Seattle in 1993, Zymogenetics Inc., a biotech company, had spent $25 million renovating the city’s defunct steam plant into a laboratory. But the building was a designated landmark, so the city’s historic preservation officials forced the company to shell out an additional $500,000 “to add half a dozen fake smokestacks” to resemble the ones that had been part of the original structure, according to the Wall Street Journal (September 19, 1995).

Dictating how private property should look is also a good way to encourage people you don’t like to leave your community. In Flossmoor, Illinois, that meant cracking down on owners of pickup trucks. In this town of 8,000 just south of Chicago, the open display of pickups by the town’s blue-collar residents offended an affluent elite. So the village passed “an ordinance that bans the parking of pickup trucks in one’s driveway or on the street.” As one resident of Flossmoor for 32 years told Insight magazine (May 21, 1990), “I moved to this community because it was beautiful, quiet, upper-class. . . . If they want a pickup truck and there’s an ordinance in the village that says you cannot have one on your property, then go live somewhere else.” But given that there was no such ordinance when they moved in, why should the pickup owners be the ones to relocate, rather than those who wish to avoid seeing pickup trucks?

In 1990, people who lost their homes to the Painted Cave fire in California weren’t told to relocate. They were only not to rebuild without meeting Santa Barbara County’s exacting standards for architectural correctness. Although they eventually settled for dictating detailed landscaping plans to him, county officials initially told fire victim David Pritchard that he could not “replace the house he had completed just seven months earlier” because it had been too tall.

At one meeting, Mr. Pritchard explained that before burning down, his hillside home had blocked the view of no neighbor. But a planning commissioner replied that allowing him to rebuild his home as tall as it had been would allow it to be “in view of everybody who drives up [Highway] 154.”

Fostering Censorship, Thwarting Consumers

That’s a typical excuse for censoring how someone thinks his property should look: It might offend the tastes of someone else. But is this a good reason for the government to regulate what we see? As Bernard Siegan notes in his book Land Use Without Zoning:

People differ greatly in their perceptions and concepts of beauty, and this makes it most unfair and perilous to progress to allow any one person or group to impose aesthetic controls. History readily bears out that society will be enriched by being subjected to a great variety of artistic or visual experiences; modern culture is enormously indebted to creations that were highly unpopular and virtually subversive in the past. Controls on the appearance of property allow intolerance to masquerade as high-mindedness, stifling innovation and creativity.

In Siegan’s view, a historical preservation commission that stops controversial buildings is engaging in a kind of censorship, no more justifiable than censoring controversial books or museum displays. The result is that “we may be creating through [land-use] regulation a society in which aesthetic diversity is highly limited.”3

And in revoking the right of citizens to determine the appearance of their property, the government only weakens general consumer welfare. When the New York City Landmarks Commission vetoed the building of a tower over Grand Central Terminal, it also vetoed the interests of the tower’s potential residents and of the surrounding businesses that would have served those residents. As Siegan has remarked elsewhere, “the aesthetic ideals of a publicly appointed body” were allowed to “deny material comforts to a significant segment of the community.” Only individuals exercising their private property rights, not government committees exercising dictatorial powers over property, can satisfy the widely diverse tastes and desires of people.

Take strip shopping centers. Advocates of aesthetic control may condemn them as “eyesores” and seek to use zoning to prevent their construction. Yet the outlets they contain–laundromats, convenience stores, repair shops–serve the needs of the “poor and less mobile in the population.4″

Or take billboards. Scenic America, a national lobbying organization devoted to “cleaning up visual pollution,” dismisses billboard advertising as “a parasitic industry benefitting a small interest group at enormous cost to the public,” according to the group’s “Sign Control News” (March/April 1990). In fact, outdoor advertising benefits consumers by increasing business rivalry. Roadside signs are often the cheapest way for new business to challenge more established firms for the patronage of customers. Billboard price advertising allows consumers to find lower-priced gasoline more easily, reducing the average price paid.5 In others words, billboards and other commercial signs exist, not because a “parasitic” outdoor advertising industry forces them onto an unwilling public, but because these media provide information consumers desire.

Sorry, Charlie

A free market ruled by consumers is not what Scenic America wants. Neither do other advocates of coercive controls on the appearance of property. Unfortunately, Prince Charles of England is such an advocate.

According to the November 5, 1988, edition of The Spectator, “Prince Charles does not like tall buildings.” When viewing the plans for an 800-foot skyscraper, Prince Charles asked the architect, “Why does it have to be quite so tall?”

The answer is simple: Because the developers think enough consumers want to purchase or lease space in a building that tall. Individuals who must bear the economic consequences of what they do with their property are competent to decide how it should look.

—

1. Paul McKay, Sign, sign everywhere a sign . . . Houston Chronicle, June 4, 1995, p. 33A.
2. See Ralph Bivens, A growing conflict in the Houston Chronicle, November 13, 1994, p. 1E. This study of the tree controversy in Houston shows how commercial developers often save trees to enhance their company’s image or to improve the value of property they own. The article says that merchants in shopping centers worry that keeping too many trees will prevent potential customers from seeing their stores. However, the article shows how one developer saves trees from a commercial project to transplant elsewhere on the same site or move the trees to a residential project with the hope of making the area more attractive to home buyers. The article also alludes to the fact that Houston has many office parks extensively adorned with trees.
3. Bernard H. Siegan, Land Use Without Zoning (Lexington, Mass.:D.C. Heath and Co., 1972), p. 143.
4. Siegan, p. 143.
5. Countering claims that billboard advertising–or other advertising–of alcohol and tobacco could contribute to the public health problems associated with increased consumption of those products, Ekelund and Saurman note that the 1971 ban on the broadcast advertisement of cigarettes apparently had only a small effect on overall consumption. Moreover, advertising restrictions for such controversial products retard the introduction of their safer versions, as the ban on TV cigarette advertising slowed the introduction of low-tar and low-nicotine cigarettes. See Robert Ekelund and David Saurman Advertising and the Market Process (San Francisco: Pacific Research Institute for Public Policy, 1988), pp. 149, 137.

They shot me as I opened the door of my pickup truck. They hit me five times. One bullet tore into my left knee. A bullet went into my right hand. A bullet went into my right side and exited next to my navel. Two bullets went into my thigh. I felt like I was being burned with a hot poker, and then I went into shock.

I dragged myself behind the truck, hoping to protect myself from further shooting. I dragged myself into the house so I could call for help. An ambulance took me to Mid-Jefferson Hospital, a few miles away in Nederland, Texas. I didn’t see or hear anything.

I didn’t have to see them to know they were militants from the local of the Oil, Chemical and Atomic Workers International Union. This was October 2, 1982, amidst a bitter strike at the American Petrofina oil refinery in Port Arthur, Texas, where I helped maintain boiler systems. I had been the first to defy union bosses and exercise my right to work.

About 25 years ago, a small group of men had taken over this local. Like union bosses elsewhere, they exploited the powers of compulsory unionism and forced dues, sanctioned by federal laws. The Wagner Act (1935) in particular made it easy for union bosses to gain control of a workplace and extremely difficult for workers to get rid of the union bosses. They forced workers to join the union against their will. Membership was effectively a condition of employment. Union bosses spent members’ dues in ways that would enhance their power, and there wasn’t much anyone could do about it.

To flex their muscles they called a strike at the expiration of every two-year contract between 1972 and 1982. I’d say the strikes averaged about a month and a half. One strike lasted about three weeks, another about three months. Consequently, it was hard for anyone there to build up life savings. We saved to get through the next strike.

I was sick and tired of these pointless strikes. I reckon the best way of putting it is that you don’t have bad companies or bad unions. What you have are bad leaders. If they would work with each other, things would be great.

But the union bosses were like kids who were never willing to back down for anything. Instead of negotiation, there was confrontation. The union hierarchy was having an ego trip. They enjoyed the power. If I had to quit the union, I was willing to do it.

Well, on January 7, 1982, the Petrofina contract expired again, and union bosses called another strike. The issue supposedly was work rule changes which the company wanted. Some 300 workers walked out. Peer pressure to do so was tremendous, as always.

Petrofina supervisors and non-union workers from other refineries kept our refinery going. Soon there was violence as militants shot a company vehicle. They shot a security post with three guards in it. Cars were vandalized. The road going into the refinery was littered with nails.

By 1982, my 18-year-old daughter, Wendy, was in college, so I faced big expenses. I decided that if the strike dragged on, I’d go back to work. Naturally, my wife, Barbara, was anxious, but she agreed I should do what I needed to do.

On September 22nd—I remember it was a Wednesday—I was working again. It was something of a milestone, because in the entire 45-year history of this refinery, no member of the Oil, Chemical and Atomic Workers International Union had gone against the bosses and crossed a picket line.

But the Texas constitution guaranteed one’s right to work. On paper anyway, exercising one’s right to work wasn’t supposed to be a big deal.

Plenty of other Petrofina workers were worried about family finances. The union got many calls from workers anxious for the strike to be resolved soon. Union bosses feared that unless something were done about me, more members might return to work, and their power would collapse.

We got threatening phone calls. A caller warned Barbara: “Tell Bill we’re going to get him—and you had better watch your little girl.”

At the entrance to the Petrofina plant, union militants hanged a life-sized effigy of me from a tree. There was a sign saying “this is what we do to scabs.”

One evening as we sat in our house, rocks crashed against the outside walls.

Then came the shooting that morning as I was about to head for work.

Threatening calls continued to come. One caller warned Barbara at the Wal-Mart where she worked: “We didn’t do such a good job on your husband, but you’ll be next!”

Other callers threatened to blow up the store if Barbara weren’t fired.

I was still in the hospital when Roy Lynch, chaplain of the local, wrote a letter to the local newspaper saying, “Lots of us wished we would have done it [shot me] because of what he did by crossing.” This was the union chaplain sanctioning violence! After the first trial, he told my wife he was sorry from the bottom of his heart.

A Small Minority

I’d guess there were fewer than ten militants in our local. It doesn’t take many to intimidate a whole community. A person can be a wife beater or a murderer, and they’re one of the boys, as long as they’re loyal to the union bosses. The union takes the place of religion for some of them.

I got out of the hospital after about two weeks and returned to work. I limped, but I crossed that picket line. I remember telling Barbara: “I’ve never run from anyone, and I don’t intend to start now.”

I must say I didn’t expect things would go as far as they did. I figured the militants would try to lump my head. Shooting seemed a bit much. I served in the Korean War, and I never got a scratch.

I knew those guys. I had worked at that refinery since 1958 when I was 26.

My job was to take care of steam, water, and air lines throughout the plant, so I saw all kinds of people. Everyone was nice. I thought I was well-liked. I learned that everything suddenly goes out the window if you defy the union bosses.

I have never been able to look at work the way the union bosses do. If a man hires me and pays me what he says he will, I don’t care how much money he has. I work for so many hours, he pays me what he says, that suits me.

Such views are heretical, especially since we lived in a union town. Practically everyone worked at the oil refineries. Union bosses influenced local government, including the police. When there was union violence, militants were seldom ever caught. Witnesses, if any, didn’t dare step forward. The veneer of law wears pretty thin when people know they can get away with violence.

In my case, there weren’t any witnesses. It was about 5:30 in the morning—no cars going by our residential street, no people out walking their dogs. It was dark, and I didn’t look up as I walked out of the house.

As far as I knew, the police seemed to be doing their job, but there wasn’t anything brought out, because no one was going to talk. Although a crab fisherman found a semiautomatic rifle whose identification number had been rubbed out, police couldn’t prove anything. A grand jury called some union militants, but they took the Fifth Amendment, and that was that. Nobody was ever arrested.

If it hadn’t been for the National Right to Work Legal Defense Foundation, nothing would have been done. They had plenty of experience fighting union violence. I talked to them about three weeks after I was shot, and their attorney Bob Gore visited me.

He began gathering strong circumstantial evidence for a civil case against the union. For example, the telephone company has records of all local calls placed to a number. These records aren’t shown on your bill, but the phone company has them. If you give phone company people your number and the approximate time someone called you, they can find where the call came from. Barbara and I kept a journal of the threatening calls, all traced to known union militants. Some calls were traced to the vice chairman of the union local.

We filed suit against the local and four union bosses. The charge was conspiracy to violate my right to work under Texas law. The trial began in Beaumont, Texas, September 1986. Right-to-work attorneys called witnesses to many acts of violence which had occurred during the Petrofina strike. One of the union bosses was on record as warning members not to be violent in front of television cameras that Petrofina had set up on its property. The attorneys presented evidence about my case. The jury, however—in this heavily unionized area—found the union bosses not guilty.

The attorneys subsequently learned that one of the jurors was the niece of a striker who was a former defendant in the case —and she was less than forthcoming when questioned by attorneys. Another juror confirmed that the union juror had intimidated the rest.

Judge Jack King ruled the case must be tried again, this time in an area less subject to union influence—about 95 miles away in Huntsville. In October 1987, the jury ordered the union to pay us $1.2 million in damages. But a month later, the presiding judge invalidated the jury award.

National Right to Work Legal Defense Foundation attorneys brought the case before the Texas Court of Appeals. In July 1989, judges there decided that union leaders had sanctioned violence and failed to curb the militants. The jury verdict was upheld.

Then the union appealed to the Texas Supreme Court, but it declined to hear the case, which meant the jury decision stood. The union declared bankruptcy.

I’m still feeling the injuries I suffered. I’ve had my knee operated on three times, and I drag my left leg. I can’t squat down or lift very well.

Barbara is a strong person, but this was the first time union violence hit home, and it was bad for her. I didn’t realize it affected her as much as it did. She was so worried about me and our daughter. We have learned to live with it.

Incidentally, the strike ended about two months after I was shot. There hasn’t been a strike at the Petrofina refinery since —more than a decade of peace and prosperity. Workers can now save for their families instead of always preparing for another strike.