The Question of Public Property

A particular recurring error in political debates has resurfaced as of late as various factions have clamored over one another to support Cliven Bundy’s unpaid use of publicly owned property. As is the case anytime this error is employed, it is most often heard from  libertarians who have defended the indefinite and unrestrained use of public property in manners contrary to the government’s intent. Because the property is public, the argument goes, any member of the public is free to use it as their whims dictate. Any attempt to stop someone’s ability to utilize public property as they wish is an unacceptable use of force.

To the credit of most the individuals making this argument, there is agreement among them that the government should not own the property in question in the first place. After all, the very notion of “public property” is a contradiction in terms. As Ayn Rand wrote in “The Property Status of Airwaves,” from Capitalism: The Unknown Ideal, “…‘[P]ublic property’ is a collectivist fiction, since the public as a whole can neither use nor dispose of its ‘property’…”

The right to property is, by definition, the right to use and dispose of a given entity. If a piece of property is jointly owned, the terms of ownership are mutually agreed upon by all parties through a contract. But the notion of “public property” flies in the face of such rational principles of ownership. The owners (meaning every member of the public) are not free to use the property as they wish, as it takes but two of the over three hundred million individuals in the United States to disagree on how the property should be used and one, the other, or both will end up having their “ownership” inhibited. But neither can the owners properly contract with one another to arrive at mutually agreeable terms of shared ownership, as the very nature of “public property” relies upon force, not negotiation, to determine how it is to be managed.

Unless each member of the public unanimously agrees to the contract (and all new members continually agree as they come of age), the “contract” would be invalid, and the terms of use can only be maintained by a majority compelling the minority to abide by them under force of law.

All of this is to say nothing about how public property comes to belong to the public in the first place, which almost invariably occurs through a violation of rights (e.g., eminent domain, purchase with extorted tax money, preventing private buyers from purchasing it, etc.). These problems arise regardless of the form of property involved, whether land or parks, schools or universities, roads or sidewalks. The government may possess and manage only that property used for the universal protection of rights of all members of the public (the only legitimate function of government), such as police and military property, because that property has one permissible use regardless of potential dissenters – retaliatory force in the pursuit of justice. This is not to say that such property cannot be too extensive or used improperly, but then the voters have recourse to the legislature to bring such use back within the scope of rational ethics and politics.

For all other conflicts and dilemmas, the solution is simple: sell public property. Then, it will become property in the proper sense – solely in the hands of one, or in the hands of many on terms to which those many agree.

The real issue is what to do in the meantime, and here is where serious questions arise. Any answer that is offered short of full capitalism necessarily falls short of solving all the moral issues at hand. So long as public property exists, rights will be violated. Period. So when one begins to theorize on how to best manage public property, one is really doing nothing but finding the best way to operate an imperfect system.

“Best” in this context can only mean  “the least injurious of all injurious alternatives.” If an individual’s life is the ultimate moral standard, and if political rights are derived from that standard, then – recognizing, but not sanctioning, the existence of public property – the policy that is least disruptive to man’s pursuit of his life and happiness is the “best” short of the property’s privatization. If a man must choose between a broken neck and a broken pinkie finger, it is only rational to choose the pinkie finger, though the fact the remains that he should not suffer injury at all.

The libertarian solution of claiming a nonexistent “right to use public property without limit” is, by contrast, one of the worst answers to the problem. This supposed “right” is, in actuality, nothing but another manifestation of the moral relativism and philosophic subjectivism that has plagued libertarianism for decades. Managing public property by forgoing any management whatsoever is but an affirmation from the libertarians that they make no distinction between more rational and patently irrational utilizations of public property – that using public roadways for political rallies is no different than using them for transportation, that ransacking administrative offices at a public university is the same as using them to educate students, that using public parks as cesspools and toilets is the same as using them for casual walks and flying kites.

Of course, this management style creates more injuries than it resolves. Not only is man injured from the very existence of public property and from the extorted taxes he pays to maintain it, but now he must also suffer being unable to use the property as it was designed to be used. His local roads are blocked, his education is hindered, and his local parks covered in blood, feces, and puke from people who demand his wealth as their entitlement. It is, in a very real sense, publicly subsidized anarchy.

Rather, public property should be managed in the semblance of like forms of private property. A private highway would be used for transportation; a private university, for education; a private park, for recreation. Those utilizing the property contrary to its design or simply vandalizing it would be removed and punished accordingly. At least then, when applied to public property, the injury to most men’s lives would be minimal. Those injured most would be, properly, those wishing to do the most injury to others – freeloaders, vandals, thieves, and sheer nihilists. Those factions may not be free to utilize public property “as they wish,” but the vast majority will without multiplying the injury already caused by the existence of public property (even if they should support its abolition).

And there is an element of reasonable democratic decision making in this process. If the property belongs to the public (though it should not), then it seems inimitably fair that it be managed according to the wishes of the majority. This is, of course, provided that those wishes are narrowly tailored to reduce the injury as much as possible. At least then, as many are accommodated as possible while the property remains in control of that immense nonentity “the public.” If the minority in such determinations includes only those who are arguing for the worst (i.e., most injurious) policies managing public property (e.g. Jim Crow advocates) and the majority consists of those  arguing for the “best” (i.e., least injurious) policies in such cases (e.g. public school integrationists), then that is the best that can be hoped for in a mixed economic system.

However, if a minority has devised a way to reduce the injury further, then the majority loses its managerial status and ought to yield to the minority. If the majority does not yield, the minority unfortunately only has recourse to the ballot box or limited forms of civil disobedience. The latter, however, cannot extend to include causing additional injury to that already caused by the majority, or else the statuses are reversed again the majority maintains its managerial position.

If libertarians are not already thoroughly disgruntled by this argument, here is where they would perhaps become even more frustrated. To them, and many members of the left, there is no limit to civil disobedience if done in the pursuit of individual rights. Such is why many support the “managing without management” strategy for public property. They recognize that public property itself is a violation of rights and thus see no issue in damaging, destroying, or inhibiting the use of that property. They are not the ones violating rights, they argue. Rather, they maintain that the government committed the initial injury, and so anything that they do after is justified – often ignoring the additional violations of rights that they are committing in the process.

Rand addressed the issue in another essay within Capitalism: The Unknown Ideal entitled “The Cashing-In: The Student ‘Rebellion’”:

Civil disobedience may be justifiable, in some cases, when and if an individual disobeys a law in order to bring an issue to court, as a test case. Such an action involves respect for legality and a protest directed only at a particular law which the individual seeks an opportunity to prove to be unjust. The same is true of a group of individuals when and if the risks involved are their own.

But there is no justification, in a civilized society, for the kind of mass civil disobedience that involves the violation of the rights of others—regardless of whether the demonstrators’ goal is good or evil. The end does not justify the means. No one’s rights can be secured by the violation of the rights of others. Mass disobedience is an assault on the concept of rights: it is a mob’s defiance of legality as such.”

In many cases, libertarians are merely trying to defy “legality as such,” but that discussion will be left up to Peter Schwartz and his essay “Libertarianism: The Perversion of Liberty,” published in The Voice of Reason: Essays in Objectivist Thought.

What is the application of Rand’s analysis of civil disobedience to the recent case of the welfare rancher in Nevada?

First, the land is federally owned, and so its management should be conducted in the least injurious way. Here, this means asking the rancher to pay a fee for his limited use of the land – just as a man may be asked to pay a fee to obtain a library card at the local library, or pay fees when he has used his books beyond what is normally permissible. The case of grazing cattle happens to be such a special use beyond what is normally permissible, as only a severely limited number of ranchers can use a portion of that land to graze a limited number of cattle, lest the land be overgrazed and lose its value (an additional injury to the rest of the taxpayers who also own it). If a man refuses to abide by such terms as they have been set, his ability to use the property may be revoked. If he continues to use the property contrary to the established terms, he (and his property) may be forcibly removed and any debt he has accrued may be collected.

That is what happened, yet the libertarians (and many conservatives) responded by pointing guns toward the federal officials carrying out a legal court order.

Is the situation perfect? No. The inherent contradictions within public property were present from the beginning of the conflict, and will remain present until the property is sold and capitalism is achieved.

Moreover, the situation was not even ideal. The policies put in place by the Bureau of Land Management protected a tortoise over real human interests – another example of environmentalist nihilism.  Further, it is possible that the fees are too much, that the terms of the grazing allocation are too restrictive, that the BLM badly mismanaged the execution of the court order (it did), etc. But the manner in which the policies were opposed, and the context in which the protest occurred, did more injury than it solved. It rejected the notion of any public control over public land, even when the legal status of the land was indisputable. It prevented members of the public from gaining any profit from resources that they “owned.” It rejected the principle of achieving the best circumstances in an imperfect system and instead defended the system from which only freeloaders, vandals, thieves, and sheer nihilists profit. And so, Bundy and his supporters deserve censure – the censure belonging to the federal government is another matter entirely.

But the issue here should not be tied too closely to the welfare rancher and the actions of his supporters. The issue is larger and the principles wider than that narrow issue.

Public property is immoral. Its very essence is a contradiction and a violation of rights. It should be abolished, and capitalism should always be the political end.

But where capitalism is not currently possible, where a mixed economic system is the current state of affairs, the best must be made of them. Simply because capitalism cannot currently be achieved does not mean that the circumstances cannot be improved, and there is no reason not to try. And there are some who will not try for any improvement save capitalism itself, who have forgotten that capitalism is not an end in itself but a means to the end of a good, happy life.

For the rest, the alternatives must be weighed and sound judgment must be used. While public property remains public, it should be managed as in-line with reason as is possible, recognizing that managing it perfectly rationally is impossible without simply privatizing it. Nevertheless, good management of a poor circumstance is better than no management at all, as the libertarians advocate. Man’s life is the end, not floating abstractions of “rights” divorced from a subject, and if the former can be improved in spite of (but never by means of!) injury to the latter, then it should be.


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