Making a loud noise for fair use of property

The property-rights movement, said the speaker, "is not going away." He added, "At some level I think they're going to be successful."

It was a notable statement, because the speaker, professor Harvey Jacobs of the University of Wisconsin at Madison, is not a supporter.

I heard him last week at the Lincoln Institute for Land Policy, a Cambridge, Mass., think tank that had invited me there. The institute, which traces its roots to 19th-century political economist Henry George, is also critical of strengthening property rights. It takes the view that property rights are a creation of society, and that society might have reasons to barber them. One of its speakers argued that instead of "rights" we should use the term "interests."

Jacobs allowed, however, that millions of Americans don't see it that way. We are not Europeans, who bow to the common good. That was notable in two things: the reaction to the Kelo case in 2005 and the passage of Measure 37 in Oregon in 2004.

In Kelo v. New London, the U.S. Supreme Court said it was OK for a city government to force Susette Kelo to sell her house to a private developer. The Constitution allows the taking of private property for "public use," and the court said an office park and marina were public uses if the government of New London said so.

The court had reached this kind of decision in 1954, in Berman v. Parker. In that case it allowed Washington, D.C., to force a merchant to sell his department store. What was the difference? Not legal principle: In 2005, it was a home rather than a store. In 2005, there was a political a movement to back up the homeowner, and pay her legal bills. In 2005, four justices dissented — in 1954, none had — and Justice Sandra Day O'Connor's dissent was stirring.

And in 2005, the law firm that lost, the Institute for Justice, took the case to the court of public opinion. There it has prevailed: Kelo has become the most reviled Supreme Court decision in years, and many states have passed laws that effectively nullify it.

Meanwhile, the voters of Oregon passed Measure 37, which allows owners to develop their property according to the rules in place when they acquired it. For some owners, it rolls back decades of restrictions. And in Oregon, which Jacobs called "the most environmental state," 61 percent of the voters approved it.

No doubt, some did not understand how far-reaching it was. But Bob Stacey, executive director of 1,000 Friends of Oregon — a group that fought Measure 37 and that now fights to reform it — admitted to the gathering at Cambridge that the people of Oregon understood the idea of Measure 37.

"Oregonians support two things," he said. "Reasonable regulation and reasonable protections for property owners. And the people are right."

The environmental groups that beat Initiative 933 in Washington last fall are saying much the same thing. In a letter signed by Aaron Ostrom of Futurewise (formerly 1,000 Friends of Washington), six groups allow that "there remain issues of fairness for landowners in Washington." This is not an acknowledgment of rights, but of the widespread belief in rights.

All rights are "social constructs." But if enough people feel deeply about them, and insist on them, they will have them. By itself, the Constitution is useless. It is easy enough for the justices to take a phrase like "for public use" and snip it out with rhetorical scissors. Half a century ago, Justice William O. Douglas did just that. Future justices are less likely to do that, because they don't like to be booed.

I am reminded of the statement by Washington initiative king Tim Eyman: "All initiatives are lobbying." That was the value of Initiative 933. It was not that the details were right. The important thing was the idea, and making a noise.

Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com