Your home is not your castle in Massachusetts, where it is illegal for homeowners to do any plumbing work in their own home. No, really. If you get up in the middle of the night to fix a running toilet, you could end up paying a hefty fine for not hiring a plumber to do that work.
Meet John Carbin. Carbin is a former Black Hawk crew chief and a federally certified aircraft mechanic. By any measurement, he is skilled with his hands and more than capable of around-the-house handyman tasks. His problem is that he lives in Massachusetts. Massachusetts state law prohibits handy homeowners like John from securing a permit to install their own plumbing.
This may sound like a minor plumbing problem, but it is a sign of a much bigger problem: the degradation of fundamental property rights in our country. At a time when the federal government is seizing equity positions in private companies, Carbin’s case provides the Supreme Court with an opportunity to correct its New Deal-era approach to diminishing the property rights that Americans hold dear.
For decades, the federal government has treated Americans’ interest in their property not as a fundamental right, as the Founders saw it, but as little more than a government-created privilege it can give and take away at will. That paradigm has facilitated innumerable harmful and illegitimate government policies. A case about plumbing in Massachusetts could begin to restore the right to property to its proper place alongside life and liberty as essential elements of human dignity and flourishing.
To the Founding generation, property was foundational to liberty and economic prosperity. If the government can take a person’s property arbitrarily and without compensation, it can punish a disfavored person or class for exercising its other liberties. If you doubt that, just look at places such as Russia, Communist China, and Venezuela.
That is why Sen. Jacob Howard, who introduced the 14th Amendment in an attempt to protect black Americans in the South after the Civil War, said that fundamental rights, including the right to property, lie “at the basis of all society” and that without them, “a people cannot exist except as slaves, subject to a despotism.”
Since the New Deal, the Supreme Court and America’s federal and state governments have diminished the fundamental right to property to little more than a government-created privilege. When the government attempts to censor a person’s speech, courts apply a very high standard of review and virtually always strike down the government’s censorship. But when a state limits a person’s ability to use their property, even in the home, courts often rubber-stamp the law or regulation.
Disparagement of property rights has had significant consequences both locally and nationwide. For example, the Trump administration has recently been taking equity stakes in corporations, putting itself in a position to exercise power as both a regulator and an investor. This state “capitalism” undermines the market and is unlikely to provide the national security benefits the administration claims to be seeking.
Similarly, the administration is going forward with Biden-era pharmaceutical price controls, which require a property owner either not to sell its products at all or to sell them at less than their actual price as determined by the market.
Both of these actions are not only bad policy but unconstitutional infringements of property rights that smack of nationalization.
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The administration is also separating millions of Americans from their property through tariffs. Although taxes are necessary, the Framers of the Constitution also knew the government’s power to tax — that is, its power to deprive people of their hard-earned property — was dangerous. After all, they had only relatively recently finished fighting a war that was, in part, a war against “taxation without representation.” So, they locked the federal government’s taxing power behind constitutional limitations, a power reserved only to Congress and one that cannot be delegated to the executive branch.
Carbin’s case out of Massachusetts provides the Supreme Court the opportunity to reverse course and begin to provide the fundamental right to property with the protection it constitutionally deserves.
J. Marc Wheat is general counsel at Advancing American Freedom.