Measure 2’s Assault on Freedom
Monday, October 18, 2010
Standard Article by Brent Bartsch
Issue: Property Rights

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The group calling themselves North Dakota Hunters for Fair Chase has been advocating an initiated measure banning commercialized game farming for several years now. Recently, the group was able to collect enough signatures to put it on this November’s ballot as Initiated Statutory Measure No. 2. Now, whether one favors patronizing deer and elk ranchers is their own personal choice (at least it is for right now) and beside the point. The point is that this measure is an assault on private property rights and thus on freedom. Perhaps the best illustration of this is an email sent out by the Chair of the Sponsoring Committee for the measure, Mr. Roger Kaseman, on October 2nd. While attempting to debate the opponents of his group’s measure, the reasoning used is contemptuous of the basic foundations of the freedoms enjoyed by Americans. To give him the full benefit of his own words, his email is quoted at length:

“The High Fence Canned Hunt Operators claim an absolute right to do with their property what they want. They argue that Measure 2 will violate their property rights. That sounds good, but is fallacious and misleading. A right must have a Constitutional origin.”

This is squarely at odds with the American tradition of natural and inalienable rights. Government is created to protect the rights of men (and women) – not to grant them their rights. This is also why so-called positive rights, which are dreamed up by politicians and bestow benefits on one group at the expense of another group, are anathema to traditional or so-called negative rights. In order for government to grant someone a positive right or benefit, they must necessarily violate other persons’ traditional (negative) rights.

The fact that state constitutions sometimes list (negative) rights is thus redundant, but done in order to provide emphasis. This can be thought of in much the same way as the First and Second Amendments to the U.S. Constitution were thought to be redundant, because the federal government was not granted the power to infringe on speech or on the right to bear arms in the original document.

“The United States Constitution does not establish the property right the Canned Hunt operators claim. The authors of the Constitution did not write property rights into the document because Southern delegates claimed human beings as property. Northern delegates would not agree to the right to buy, sell or own human beings. North and South agreed to leave property rights to the individual states.”

While no one should claim that the U.S. Constitution grants property rights – remember, the American tradition is such that our rights do not come from government – this is a tortured interpretation of constitutional history. The dispute cited above actually had more to do with how slaves would be counted for the purposes of representation in the House of Representatives (because of the repercussions that would have on the distribution of political power in the new federal government) and less to do about slavery itself – unfortunately. Nevertheless, it is true that the broad police powers were left to the individual states, thus leaving the states with the ability to take away property rights via legislation if they so chose. But, like we wish the Southern States had not denied slaves their natural property right of self-ownership, freedom would be greatly enhanced if states used this power sparingly, such as by refraining from banning commercial game farms.

“Article 1, Section 1 of North Dakota state constitution, states that an individual has the right to, ‘…. acquire, possess, and protect property….’”

Again, the state constitution is just reiterating that individuals have the right to property. Governments can protect rights and they can take away rights through laws, but they can not create them. If the North Dakota constitution was silent on the issue, the right to property would still exist.

“The right to acquire and possess comes with the duty to protect. Society, not the individual property owner, decides how best to protect property. An individual can’t buy a piece of property and bury toxic waste simply by asserting a property right. Society decides where we bury toxic waste, not individual land owners based of (sic) a phony property right.”

This shows nothing but confusion. The right to property does not require that an individual protect her property, no more than the 2nd Amendment requires an individual to own a gun. That is the whole point of property rights – it is up to the owner to decide what shall be done. Moreover, in the example cited, “society” (i.e., government) is not deciding how to protect property (as if all property is collectively owned by the government), but is instead defending the property rights of others. While the vast majority of people would not bury toxic waste in their backyard (it tends to ruin home values), the exercise of the police power of a state in order to prevent violation of others’ property rights is vastly different than what Kaseman’s group wants to do. As opposed to defending the property rights of others, Measure 2 would violate the property rights of others. In other words, Measure 2 is the toxic waste.

“Property rights are subordinate to the due process of law. The people, through their elected representatives or by initiated measure, decide what that law will be.

In 2000, Montana voters passed a voter initiated measure that outlawed Canned Hunt operations. Montana High Fence operators filed suit claiming the measure violated their rights. They lost in District Court, the Montana Supreme Court, the United States District Court, the Ninth Circuit Court of Appeals, and in the United States Supreme Court. Lawyers for the Canned Hunt operators could not cite a single court case that supported the argument that the Montana Measure violated any right.”

Yes, the states can take away property rights. This is widely acknowledged. But Kaseman’s group needs to admit that their measure means to take away property rights, instead of pretending otherwise by saying such things as, “They [opponents] argue that Measure 2 will violate their property rights. That sounds good, but is fallacious and misleading.”

“Article 11, Section 27 of the North Dakota Constitution declares that: ‘Hunting, trapping, and fishing and the taking of game and fish are a valued part of our heritage and will be forever preserved for the people and managed by law and regulation for the public good.’ [Emphasis in the original.]

Penning selectively bred, hand raised, hand fed deer and elk inside an escape proof fence and selling a guaranteed shot at the animal threatens our hunting heritage in direct violation of Section 27.”

Apparently, it doesn’t violate Article 11, Section 27. That is why this group finds it necessary to pass a new law. It is also terribly unclear how commercial game farms – essentially, the domestication of animals – threatens hunting. There are a lot of things in our modern world that threaten hunting to some degree, but this is analogous to saying that chicken farmers threaten grouse and pheasant hunting. If anything, commercial game farms expand the opportunity for city dwellers and others, such as those who have handicaps, to get some experience, albeit much less than on a wild hunt, with the reality of how their dinner gets served.

In conclusion, with twisted logic, a confused understanding of history, particularly in regards to the American tradition of natural liberty, and contradictory statements, Kaseman pretty much runs the gauntlet of ridiculousness with this one. Instead of trying to bamboozle the public with this nonsense, he should stick to talking about his group’s main point – killing animals is cruel – and leave it at that. However, while this would please the Humane Society of the United States, it seems unlikely that this message would do as well with the North Dakota electorate at large.

Brent Bartsch is an NDPC economic policy fellow.