On Rand Paul, Private Property, and What it Means to be a U.S. Senator


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I just watched a clip of the Rand Paul, the Republican nominee in the race to represent the state of Kentucky in the U.S. Senate in the fall, trying to explain why he has reservations about parts of the Civil Rights Act of 1964 (The Rachel Maddow Show, May 19, 2010, http://www.msnbc.msn.com/id/26315908/#37244354).

There is a lot to talk about here.

First, let me summarize–as fairly as possible–what I understand to be Mr. Paul’s argument (again, this is HIS logic):

1)  People own things, such as cars, clothes, bags of Cheetos, computers, businesses, etc., and these things are collectively referred to as ”private” property,

2) Although he would not engage in discriminatory behavior himself, Mr. Paul questions the right of other people (or government or society) to dictate how private property property is disposed,

3) Mr. Paul is therefore “ambivalent” about parts of the Civil Rights Act of 1964 (specifically, Title II, see http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964), because parts of the act dictate how private property (including businesses) can (or can’t) be utilized.

If you read this quickly, this logic may seem reasonable, or at least defensible.  If I ran into someone on the street that used this argument to explain why he doesn’t believe the mayor of his town should be able to enforce a city ordinance that requires him to share his bag of Cheetos with his co-workers, I would be sympathetic.  But in this case, we’re talking about someone running for the U.S. Senate (and the bar should be a little higher).

Here is what is wrong with his argument.

Mr. Paul (and a relatively high percentage of folks with libertarian leanings), seem to believe that “private” property just exists, on its own, independent of laws, governments, meddling politicians, and nosy members of the neighborhood civic associations.  Private property, from this perspective, is viewed as one of Jefferson’s unalienable rights.  You wake up in the morning, you look out the window and see the sun, trees, mountains, and little packages of “private” property scattered in the field, ready for harvest.  This view is naive and almost entirely incorrect.

Let’s do a quick thought experiment.  Let’s assume that 100,000 of us, just random people, are dropped into a pristine wilderness somewhere (I don’t know, maybe Wyoming?) and abandoned.  It’s up to us to decide how to shelter and feed ourselves.  Imagine that we’re all standing around in a big field staring at each other, looking a little dazed (and some of us are starting to wonder why we’re not getting cell reception and where we’re going to recharge our iPods) when a young republican type (short hair, athletic build, looks like he might have played QB in high school) runs over to a nearby river (the only source of fresh water for miles), drive a stake into the ground and announces loudly to the group that he now “owns” the river (because he claimed it first).  Don’t worry, he says, if anybody wants any water, he’s willing to sell it at a reasonable price.

Things go downhill from there.  Someone else claims ownership of all the timber.  Someone else claims all editable plant life.  A three-year kid announces he owns everything (and that he made his claim first)–his parents, of course, support the preeminence of his claim.

Here are a few issues that this unlucky group of accidental campers will have to sort out (in no particular order): Can natural resources be owned?  If so, what resources?  Can the coast or beach be owned?  Can fresh water sources be owned (aquifers, etc.)?  Can animal life be owned?  Can ideas be owned?  If someone makes up a song, does that person own the song?  What if someone makes up a song and teaches it to their daughter, who teaches it to their daughter, does anyone own the song?  If the granddaughter owns the song, can other people sing it?  What if another person sings the song for a third party?  If the third party (the audience) pays the second party for singing the song (the performer), does the second party have to pay the first party (the granddaughter of the author) because the granddaughter  ”owns” the song?  What if the second party records the song and the song is played over a speaker in a supermarket 27 years from now, does the supermarket owe any money to the second party (the performer) or the first party (the granddaughter of the author), or the estate of the granddaughter (because the granddaughter died ten years ago)?  And so on (the list of questions about what can be owned, what ownership means, etc. could easily go on for hundreds of pages).

In a letter to a contemporary, Thomas Jefferson wrote “Stable ownership is the gift of social law, and is given late in the progress of society.”  That was in 1813.  Lawyers and our court system have been busy ever since defining what “ownership” means.

Mr. Paul’s argument falls apart as soon as it is acknowledged that “private” property is defined into existence by “the gift of social law”–in other words, private property exists because we, as a society, have gotten together and defined it as such (and we’ve all agreed to play by the rules we’ve set up).

And this is where the hypocrisy starts.  Property rights are negotiated.  The process is messy and involves lobbyists, politicians, money, PR campaigns, and complex arguments that are often reduced to sound bites, but it is a negotiation process nonetheless.  When Disney says that the duration of copyright protection should be life-of-the-author plus seventy years instead of life-of-the-author plus fifty years and they spend significant amounts of money trying to convince politicians to change the law (and lawmakers oblige them), you don’t hear Disney questioning whether or not the “government” has the right to define what “ownership” means.  Disney isn’t going to complain, as long as the “redefining” contributes to their bottom line.  Can companies ”own” information about the human genome?  Let’s ask Myriad Genetics Inc. who, until recently, held a patent on a gene used to test for breast cancer.  There is an endless list of companies actively trying to massage the definition of “private” property so that is slants in their favor.

Here’s the point.  Businesses not only rely on society to define property rights, they do their best to influence the process in their favor.  Disney (and other businesses) can’t rely on society to define and enforce property rights, and then claim that society doesn’t have the authority to establish laws governing the disposition of that same property.

The problem with Mr. Paul, however, goes beyond hypocrisy.  He seems to believe that, as a U.S. Senator, he won’t have the right to tell folks what they can or can’t do with their “private” property.  He doesn’t seem to realize that part of the job description of a U.S. Senator is not only to set the basic ground rules of what individuals in society can do with their property, ITS TO DEFINE WHAT PRIVATE PROPERTY IS IN THE FIRST PLACE.  This is not a trivial task (and it is certainly not to be taken lightly).  The Digital Millennium Copyright Act of 1998, for example, does EXACTLY that–it defines what digital property is (and what it is not) and then dictates how that property should be disposed.

In the Civil Rights Act of 1964, we, as a society, set up certain ground rules regarding private property.  We decided that skin color (and other protected classes) should not be used to determine where you are allowed to sit on a bus, or whether you can sit at a lunch counter, or whether or not you are allowed to enter a movie theater through the front entrance (instead of the alley).  I believe that banning discrimination has improved society.  I guess we could debate that.  If Mr. Paul believed that it was a mistake–that passing laws against discrimination wasn’t a good idea–I could respect that position (well, maybe “respect” isn’t the right word, I could hold my nose and begrudgingly acknowledge that people are “different” and that we have freedom of speech for a reason, etc.).

But that’s not the point.  Mr. Paul appears to believe that we, as a society, through our elected representatives, don’t have the authority to pass such laws.  And that position, in my opinion, is indefensible for anyone running for public office, particularly for the U.S. Senate.  If we, through our elected officials, don’t have the authority to define property rights, then who, exactly, does?  Should we wait for God himself to descend and decide who has rights to that bag of Cheetos in the lunch room (or to tell us that we should let blacks use the front entrance to the movie the­ater)?  We need people, now more than ever, who understand what it means to be a U.S. Senator.  Until Mr. Paul figures that out, he should lock himself in his hotel room until further notice.

About the author

Brent D. Beal is an associate professor of management in the College of Business and Technology at the University of Texas at Tyler. In his spare time, he enjoys debating religious and political issues, reading and writing short stories, playing Scrabble, and hanging out with his wife and their three kids.


  1. Stephanie says:

    Right on target, as usual…… Very nice, Brent. Maybe you should run for public office?

  2. admin says:

    Thanks, Stephanie. Still hoping to talk you into posting something one of these days.

  3. Stephanie says:

    Maybe I could write a piece on the REALITY of organ transplantation – not the sugar-coated version where everybody lives happily ever after and goes on to invest in Apple, start a shrimping company and meet 4 presidents like Forest Gump. The reality looks more like the movie 2012 where everyone but a select few (who paid in some way – money, intelligence, providence) escape on a big boat, wait until the water recedes and start again.

  4. admin says:

    You definitely should. We should trade email about it (or FB messages).


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