From: golchowy@alchemy.chem.utoronto.ca (Gerald Olchowy)
Subject: Re: Property rights and the constitution
Organization: University of Toronto Chemistry Department
Date: Sun, 10 Jan 1993 10:56:34 GMT

In article <1993Jan10.085056.24974@ee.ubc.ca> jmorriso@ee.ubc.ca (John Paul Morrison) writes:
>>A carefully worded right to property should be in the constitution,
>>because individuals should not have to rely on legislatures to
>>define and protect property, but individuals should be able to
>>advocate for property through the courts, just as they are able
>>for other rights such as equality rights or freedom of expression.
>
>
>I agree. I don't want my property (which is just an extension of my liberty)
>restricted at the whim of changing governments.
>>
>>How it is worded is crucially important, since as I have argued,
>>property has to be put into the proper context in relation to liberty,
>>but since I am not a constitutional lawyer, I cannot exactly recite
>>appropriate constitutional language that strikes what I would consider
>>the correct context and balance.  The context of the right to property
>>should be as I have been discussing it.  The legislatures can make
>>mistakes about property, advocacy through the courts should be allowed
>>to attempt to point out the mistakes of legislatures.
>>
>>However, I don't want the constitutional right to property so absolutist
>>that it prevents governments from acting at all, taxing at all, or
>>making things like zoning, or environmental legislation impossible.
>
>Why? Is this just an acknowledgement of the compromise (ie partial 
>betrayal of principles) needed to get other people to go along?
>

The problem is that property is a much more complex right than
expression.  For example...in a constitution, one can put the statement
(as in the US constitution), that "Congress shall make no law abridging
freedom of expression", and that works just fine, because limited
government should have very limited involvement with expression.
However, everything that a government does involves contraints on
property...a provision like "Congress shall make no law abridging
the right to property", essentially means there is no government at
all...what governments do is abridge property...the right to property
is in some sense a requirement to empower individuals so government
does not abridge property completely, which is what governments have
a tendency to do.

Whereas, I think the "reasonableness" clause in the Canadian
constitution goes too far for rights like expression in permitting state
meddling, such a "reasonableness" clause might be suitable along
with the assertion of the right to property.  The distinction
being that governments should not meddle with expression, whereas,
to some extent governments inevitably meddle with property.  The
area of property is inevitably a much more contested area of debate
about what is reasonable, and where lines should be drawn, than
is expression...because property is an expansive dynamic concept, without
natural bounds, whereas the bounds of expression are more easily
recognized.  The advocation of property is to advocate for
a greater individual...say that an individual is a balloon, the
advocation of property is the thing that really expands the balloon,
that creates a zone of liberty, against the state, which usually
tries to snuff out the balloon...the right to property is represents a 
struggle for dynamic equilibrium between the individual and the state,
wherease expression is in a more static equilibrium between the
individual and the state, and thus rules for expression can be more
rigid, and the rules for property should be more flexible.

The means of empowering the individual in the struggle for property
with the state is a constitutional assertion that the right exists,
as with other rights, but the constitutional assertion should allow
for the greater dynamism in the concept, which is required for
property, that is not required for more well-understood and defined
rights like expression.

I've deleted your thoughtful objections to my previous vagueness...
have I responded enough to clarify or satisfy your objections.  

Gerald