Trashing of Property Rights Again

Tibor R. Machan


The Oakland Worldwide apartments in California do not ban smoking around the pool frequented by renters. John Birke thinks that the smoke his child is inhaling there is hurting her. But instead of taking the trouble of moving to a place where no smoking is permitted by the pool, of which there are plenty, he has decided to sue the owner(s). At first a lower court tossed the lawsuit but then an appeals court gave it a go ahead. No word yet how it will fare but just to get a chance at a win is a travesty of justice in a free country. Nor did news reports disclose whether Melinda Burke moved to the apartment complex after the policy of permitting smoking around the pool was in place--a vital issue in determining if she has a valid complaint.

When you own something it is for you to decided what is done with it provided no one's rights are being violated. When you rent someone an apartment, if they know there is something done by fellow renters or you that they do not like--something that even could injure them--they have to put up with it or go elsewhere. They don't get to move into the place and then deny others the right to be free to smoke or whatever that's not an imposition. And it is no imposition when the lack of a smoking ban is fully disclosed.

Now the radical position, the right one, is not widely embraced and practiced, mainly because the government makes rules for private parties which these parties may not break even if these rules are onerous. So if my apartment house were to make it OK for renters to run around nude at the pool and everyone knew about this before renting there, anti-nudists would have no justification for throwing a hissy-fit about it all although the government would probably ban it. And the same with smoking or anything else one doesn't approve of. As they used to say, without flinching or irony, "It's a free country, go live elsewhere if you don't like it here."

The reactionary trend toward making government determine what rights we all have rather than human nature, which is how the Founders did it, is now rampant. Rent control, for example, is a perfect example of government violating the rights of the apartment owners who should have no one telling them what rents to charge. It's supposed to be a free country. And, yes, this extends even to racial discrimination--if it is my place, I get to be a racist about it however vicious racism is. (I am free, so far, to be a racist when I pick my friends and lovers, which again is arguably irrational.)

In a genuine free country a great many ways of life are possible, many of them objectionable, even morally odious for some but not others--one size does not fit all. But in the nanny state that America is becoming, the ruling opinion is imposed on everyone, be this opinion sound or unsound. The only exception so far is with what someone has a right to say or whom someone may worship. The First Amendment to the U. S. Constitution still gives legal protection to everyone's right to freedom of expression and religion but it's hard to say for how long. There are some trends suggesting that even these rights may come under assault. People who dispute man made global warming, for example, have been threatened with being barred from all government contracts even though the spirit and letter of the 14th Amendment clearly makes this unconstitutional.

When one finds oneself in the minority with one's life style, one's choices, tastes and preferences--even with what may well be one's better judgment--one makes one's way in life without coercing others to fall in line. A free country is also supposed to be a pluralist, multicultural country and the fact is that what some people would enjoy in life may annoy others to no end.