Against Entrenching Property Rights

“Protection of property is a basic right.” So says the editorial in the National Post (Friday, February 25, 2011). So says John Locke in the Second Treatise of Government.

And so say I.

But should we entrench the protection in the Canadian Charter of Rights and Freedoms?  No! Entrenching rights curtails legislative debate, public deliberation, and the voters’ sense of political efficacy.

The immediate occasion for the Post’s editorial was the decision by Federal MP Scott Reid and Ontario MPP Randy Hillier to introduce resolutions for entrenchment in their respective legislatures. They cite instances in their ridings where governments have appropriated private lands in ways that are indeed to all appearances unjust.

The better way to correct particular injustices, I would argue, and the better way to secure property rights in general is to raise a ruckus about  particular cases in the legislatures, and in the public arena and the media. That’s politics and our rights and freedoms depend on it.

Remember the attempt in the 1980s and 90s to entrench a Canadian Charter of Social and Economic Rights? It seemed obvious to many good-hearted Canadians that looking after our less privileged citizens was the right thing to do and that governments should be compelled to do it. See the section on the Social and Economic Union in the Charlottetown Constitutional Accord (1992). It reads in part: “The policy objectives set out in the provision on the social union should include but not be limited to: providing throughout Canada a health care system that is comprehensive, portable, publicly administered and accessible; [and] providing adequate social services and benefits to ensure that all individuals resident in Canada have reasonable access to housing, food and other basic necessities.”

The Accord catalogued the pieties of the 1980s. I can’t begin to describe the reach of its ambitions. It called for high quality primary and secondary education … protection of workers’ rights, protection of the environment …

It would have entrenched equalization payments and First Minister’s Meetings. “Parliament and the government of Canada are committed to making equalization payments so that provincial governments have sufficient levels of public services at reasonably comparable levels of taxation.”

It was a bold play by one generation to set Canada’s course for once and all. It would have made it almost impossible for Canadian legislatures to respond to changes in the mood of the country, new situations and new arguments.

It would have crippled our democracy. It failed, thank goodness, in the national referendum of 26 October 1992. (I can hear Ted Morton laughing. He knows I voted “yes” in the referendum. I voted with my heart, Ted. I couldn’t bear to think of breaking up the old partnership between Upper and Lower Canada. I lost my head.)

To repeat: Constitutionalizing rights takes political issues out of legislatures and detracts from public debate. It demeans the citizens’ sense of political efficacy. The better way to correct particular injustices is to keep hammering away at issues and abuses in the arena of public opinion and in the legislatures.

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8 Responses to “Against Entrenching Property Rights”


  1. 1 P.M. Jaworski March 1, 2011 at 11:07 pm

    Janet:

    I love your work, and I love your blog.

    The logic of your argument above implies that we shouldn’t have a Charter at all.

    You write:

    “The better way to correct particular injustices, I would argue, and the better way to secure property rights in general is to raise a ruckus about particular cases in the legislatures, and in the public arena and the media. That’s politics and our rights and freedoms depend on it.”

    And that’s as true of property rights as it is of, say, freedom of peaceful assembly, or freedom of religion, or any of the provisions in the Charter. You don’t offer an in principle distinction to mark the difference between, specifically, property rights and the other things found in the Charter.

    The same logic would apply to your comment about the Charter of Social and Economic Rights.

    So am I to understand that you oppose constitutions in general?

  2. 2 Terrence March 1, 2011 at 11:17 pm

    I detect the presence of Jeremy Waldron in this debate. He does make some good arguments against entrenched rights charters.

    Peter, to play devil’s advocate, what do you think of this argument sketch?

    (1) We all owe a duty of basic respect to our fellow citizens.

    (2) This duty requires that every citizen get a voice in important collective decisions, especially when there is a potential for reasonable disagreement.

    (3) An entrenched rights charters make decisions, once and for all, about important matters about which there is a potential for reasonable disagreement.

    (4) In this way, an entrenched rights charter prevents certain voices from contributing to the collective decision-making process.

    (5) Therefore, an entrenched rights charter is inconsistent with the duty of basic respect.

    This is just off the top of my head, reconstructed from Waldron’s much better arguments, but I detect the same arguments behind Janet’s post.

    • 3 P.M. Jaworski March 1, 2011 at 11:36 pm

      I like explicit arguments like that.

      I’m worried that your argument is self-defeating. Is the claim in 1) open to reasonable disagreement?

      Suppose it is not. Then my argumentative strategy would be to accept 1) and to try to show that basic property rights are a constitutive part of “basic respect,” so that property rights fall out of 1) conceptually.

      After all, what does it mean to demonstrate basic respect to our fellow citizens if we do not respect their space, and their claims to certain objects in the world? What good is voice if you don’t have exit (in this case, into your own home/castle)?

      Supposing that you don’t find that persuasive. Suppose you don’t think that some basic property rights are entailed by a duty of basic respect owed to fellow citizens. In that case, I would argue that we have a separate duty to respect property rights-like claims made by our fellow citizens. And while we’ll have to make tough decisions between the duties (we’ll have to figure out some sort of principle for weighing those duties, for example), I don’t see how the duty of basic respect always and automatically trumps property rights.

      This isn’t an exhaustive response (I have a few other arguments in mind just now), but I don’t want to write thousands of words…

      • 4 Terrence March 1, 2011 at 11:50 pm

        I think there are two approaches to thinking about the duty.

        The first approach is to say that the basic duty is not subject to reasonable disagreement because reasonable disagreement pertains only to disputes about the good and not the right. Waldron explicitly doesn’t buy that line, and I don’t blame him. Rawls sometimes seems to buy it, and Waldron kicks him around for that.

        The other approach is to say that the basic duty is potentially subject to reasonable disagreement, but not within the public political culture in which we liberals find ourselves. Taking up that approach requires modifying my argument just slightly (assume by “potential for reasonable disagreement” I mean “potential within this public political culture.”)

        Okay, so in response to your other replies:

        “After all, what does it mean to demonstrate basic respect to our fellow citizens if we do not respect their space, and their claims to certain objects in the world? ”

        I think Waldron would say that you can have a society where these claims are respected without a rights charter. Entrenching property rights would impose a certain conception of property — maybe a certain bundle of rights — on people, when there can be reasonable disagreement about what sticks belong in the bundle.

        Finally, if we think there may just be competing duties here, I think Waldron might bite the bullet and say that basic respect comes first.

  3. 5 P.M. Jaworski March 1, 2011 at 11:47 pm

    I noticed something, actually.

    The worry you and Janet appear to raise is that property rights would push something off the political/democratic table, when, in fact, it should remain on the table either for “duty of basic respect” reasons, or for the reasons that Janet offers.

    But let’s be clear. The proposed amendment is not an amendment to entrench property rights. It is an amendment that entrenches the right of the people to not have their property taken *without compensation*.

    What this amendment takes off the table is *expropriation without compensation*. It does not push expropriation off the table.

    And I think it’s easier to argue that a) expropriation without compensation really ought to be off the table and b) that expropriation without compensation violates the duty of basic respect for our fellow citizens.

    Don’t you think?

  4. 6 Terrence March 2, 2011 at 12:05 am

    I don’t want to assume I’m getting Janet or Waldron right at all. I’m just playing devil’s advocate and leaping off from some of the points both of them raise.

    One way to rephrase your point is that Reid and Hillier’s proposed amendment doesn’t impose a complete conception of property on society, but only establishes one crucial stick in the bundle.

    Hence, there’s less room to disagree with it.

    But let me try this:

    The amendment forbids expropriation without “full, just and timely financial compensation,” which seems to require that the person get the full value of his property. Why would an amendment that forbid expropriation without (say) 75% compensation be any less reasonable?

    Why is full compensation required? And can that question be answered without invoking an entire conception of justice about which there very well could be reasonable disagreement?

  5. 7 Scott Reid March 5, 2011 at 11:16 am

    Janet,

    I share your concerns about the vaguely-worded statements of intention that found their way into the Charlottetown Accord. Had the Accord been constitutionalized, the courts would have been forced to choose between rendering these provisions null and void, or turning their vague sentiments into all-powerful injunctions that would have made governing the country well-nigh impossible.

    In particular, the offending provisions of the Charlottetown Accord violated the practical notion that general principles should not trump particular policies—unless the principles are very carefully hedged to limit their application to particular policies that we are absolutely certain we want to prohibit.

    This thought was at the back of my mind as I worked on the language of the property rights amendment proposed by Randy Hillier and myself. Its goals are, I think, genuinely modest and are carefully hedged in, using language that would, I think, be hard for even the most creative judge to construe into more than it is meant to be.

    Specifically, our draft amendment proposes to change the Charter of Rights as follows:

    1. The following section is inserted after section 7:

    7.1 (1) In Ontario, everyone has the right not to be deprived, by any Act of the Legislative Assembly or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

    (2) Subsection (1) refers to any Act of the Legislative Assembly made before or after the coming into force of this section.

    So, if the Ontario government or one of its creatures (such as a municipality) strips away some of the value of your property, it’ll have to pay you. This already happens, under the terms of the province’s Expropriations Act, when title is taken from you. But property is, in practice, the bundle of rights and obligations associated with an object of value—and when the province leaves your nominal ownership intact, it can strip away all the rights and all the value associated with that property—and you don’t qualify for a penny of compensation.

    Under the terms of our proposed amendment, partial expropriations that destroy the financial value of real property will be treated the same as formal expropriations that take away title. But that’s the only thing that will change. Under our narrowly-worded amendment, which limits such protection to real estate, it won’t be possible to expand the meaning of “property” to include moveable property, let alone patents, copyright, trademarks, milk quota, or anything else.

    Best,

    Scott Reid

  6. 8 Scott Reid March 5, 2011 at 11:31 am

    Below, I have reproduced the very sensible provisions of Ontario’s Expropriations Act, which dictate what happens when title to property is seized by the province or by an agency authorized by the province to engage in expropriations.

    The law contains 44 sections, dealing with all the practical details of determining market value, and dealing with leases and other such complications. But sections 13 and 14, which I’ve reprinted here, are the key provisions, and replicate, for full expropriations the goals that Randy and I are attempting to replicate, for de facto expropriations of value, in our constitutional amendment.

    EXPROPRIATIONS ACT (R.S.O. 1990, c. E.26):

    13(1) Where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with this Act.

    Where the land of an owner is expropriated, the compensation payable to the owner shall be based upon,
    (a) the market value of the land;
    (b) the damages attributable to disturbance;
    (c) damages for injurious affection; and
    (d) any special difficulties in relocation,
    but, where the market value is based upon a use of the land other than the existing use, no compensation shall be paid under clause (b) for damages attributable to disturbance that would have been incurred by the owner in using the land for such other use.

    14 (1) The market value of land expropriated is the amount that the land might be expected to realize if sold in the open market by a willing seller to a willing buyer.

    (2) Where the land expropriated is devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, and the owner genuinely intends to relocate in similar premises, the market value shall be deemed to be the reasonable cost of equivalent reinstatement

    (3) Where only part of the land of an owner is taken and such part is of a size, shape or nature for which there is no general demand or market, the market value and the injurious affection caused by the taking may be determined by determining the market value of the whole of the owner’s land and deducting therefrom the market value of the owner’s land after the taking.


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