Why “Social Justice” Theories are the Newest Threat to Your Property Rights
Overview
The Founders understood that the primary function of property law is to provide certainty and stability. Property rights were so important that they are enshrined in the Bill of Rights. The Fifth Amendment to the Constitution requires the government to pay “just compensation” for the “taking” of private property. But, in some legal circles Marxist/socialist ideals are being espoused by “collectivists” concerning the future of the rangeland and grassland in the American West. Those ideas are primarily cloistered among academics on the coasts, but their call for a “reckoning” or a redistribution of land rights and an associated “constitutional revolution” certainly raises concerns for private property rights in particular and basic fundamental economics in general. This shift toward ‘collectivist’ property theory represents more than a disagreement over land use; it is a fundamental challenge to the predictability of the American legal system. When property rights move from being ‘vested’ and ‘fixed’ to ‘fluid’ and ‘contingent’ on social or climatic goals, the incentive for long-term agricultural investment vanishes.
Federalism vs. Centralized Management
The suggestion by these collectivists that promote centralized control of the rangelands and grasslands is that federal administrative agencies (like the Bureau of Land Management (BLM) and USDA) should take a more aggressive role in reforming grazing and water laws to meet climate goals. However, farmers and ranchers in the Plains and West would generally view this as an overreach of the Administrative State. They would argue for more local control, asserting that those closest to the land – the private property owners and local conservation districts – are better stewards than bureaucrats in Washington D.C. Also, there is a growing movement in legal circles and the U.S. Supreme Court to limit the power of agencies to make “major policy decisions” without explicit Congressional authorization.[1] Thus, proposals for sweeping environmental reform via these unelected agency bureaucrats through rule-making would likely trigger the Major Questions Doctrine (MQD) and be struck down.
Note: The collectivists also rely on the Antiquities Act of 1906[2] which represents an overreach of executive power. By encouraging the President to bypass Congress to lock up millions of acres, the process sidesteps the legislative “will of the people” in favor of an elite administrative class and non-profit “partners” who influence policy without being elected. This alignment with a powerful, centralized bureaucracy constitutes a “top-down” socialist approach to land use.
Following the landmark case West Virginia v. EPA,[3] and more recently Loper Bright Enterprises v. Raimondo,[4] the Supreme Court has signaled that federal agencies cannot make “transformative” policy changes without a very clear “thumping” from Congress. If the USDA or BLM tried to implement a wholesale shift in land use from cattle production to, for example, carbon sequestration without a new Act of Congress, it would likely be struck down. Such a shift is a “Major Question” of vast economic and political significance. Under the MQD, an agency cannot “discover” such broad power in old, vague statutes like the Taylor Grazing Act of 1934.[5]
Sanctity of Property Rights
Once the federal government issues a patent for land, that title is meant to be inviolable to encourage investment and development. If the government begins undoing land titles or water rights that have been settled for over a century, it undermines the foundation of the Western economy.[6] Likewise, while those espousing a collective view of property rights claim that Western expansion amounted to “colonial dispossession,” the expansion of the United States was a political and sovereign act. To treat 19th-century land acquisitions as “illegal” under 21st-century moral standards is an exercise in anachronism that ignores the reality of sovereign conquest and the subsequent treaties that form the basis of current law. The consolidation of Western land by the “ultra-wealthy” (as the collectivists claim) is not a systemic failure. Rather it is simply the free market at work. If a billionaire or a large corporation can manage a massive tract of land more efficiently – or transition it from failing cattle operations to private conservation or some other use – that is their right under the law. Attempting to “socially engineer” who can own land based on their net worth or race is a violation of equal protection and market principles.
The bottom line on property rights is that law is not a tool of exclusion and dispossession. Rather, it provided the necessary structure for Western development. Property rights are vested property interests that the Fifth Amendment protects. As such grazing and/or water rights should not be redistributed for “equity” reasons. Also, the claim that federal agencies should mandate “climate-ready” policies runs counter to the fundamental principle that agencies lack the authority to override state water laws or local customs. Similarly, the notion that large-scale land consolidation is a threat to “justice” fails to note the reality that consolidation is an inevitable and legal result of market competition.
Water Rights and Grazing Permits
In the West, water is governed by the Prior Appropriation Doctrine (“first in time, first in right”). These rights are considered “vested” property interests. The suggestion that water should be diverted from senior agricultural users to support ecological health or tribal restoration runs counter to the Constitution. If the government pulls water away from a rancher who has held that right since 1880, it is a physical taking. Under cases like Casitas Municipal Water Dist. v. United States,[7] the government cannot simply reallocate water for environmental purposes without paying the “fair market value” for that water.
A major point of contention in Western law is whether a federal grazing permit (BLM or Forest Service) is a revocable privilege or a property right. The view of the collectivist is that permits are a public privilege that the government can and should revoke or restrict to protect biodiversity. However, while Supreme Court held in United States v. Fuller[8] that grazing permits aren’t “property” for the purpose of compensation in a taking, because these permits are often tied to the value of “base property” (the actual ranch land), removing them effectively destroys the value of the private land. This would amount to a regulatory taking under the Penn Central[9] balancing test.
Equal Protection and Race-Based Remedies
The collectivists advocate for addressing the historical exclusion of Black and Indigenous producers through targeted USDA programs. They view land protection as a form of “restorative justice.” But following the 2023 SFFA v. Harvard [10]decision (ending affirmative action in college admissions), many courts have become increasingly skeptical of any race-based government programs. The USDA has learned this the hard way in several cases.[11] Providing benefits based on race – even to remedy historical discrimination – violates the Equal Protection Clause of the 14th Amendment. Policies, the courts have ruled, must be “colorblind” based on economic need rather than historical grievances.
Other Dangerous Legal Theories
Environmental Justice. This legal and policy concept with connections to Marxist ideology was formally recognized through an Executive Order of President Clinton in 1994 and is now taught in law schools. It centers on what it terms as the “the meaningful involvement” of all people in the development, implementation, and enforcement of environmental laws, regulations, and policies. Including recreational interests in the determination of the extent of grazing rights on public lands is one example. Theories such as “procedural justice” and “substantive justice” are the catch phrases. These principles can create regulatory burdens and limitations on land use, particularly for private property owners, farmers, and ranchers often through zoning and permitting processes, civil rights lawsuits or other environmental justice complaints. The end result is the loss of your private autonomy over your land and the ability to use your land as you see fit, perhaps with respect to pesticide and fertilizer use or water use and allocation, when it conflicts with broader social equity or environmental goals. Routine farming and ranching practices that were once routine no longer are – not because of anything the Congress did, but because of how the courts ruled. For example, in late 2024, the Montana Supreme Court, in Held v. Montana,[12]ruled that the state’s constitutional right to a “clean and healthful environment” supersedes private property rights when it comes to environmental protections. This decision has implications for agricultural practices, as it allows for stricter environmental regulations that can affect farming operations.
Human Dignity. This is another legal theory taught in law schools that has Marxist ties. As applied to property rights, this theory claims that rights alone are insufficient to guarantee human dignity in the face of what its proponents claim are systemic inequalities. They argue that achieving true human dignity requires fundamental transformations in the economic and social order and they call for a “constitutional revolution.” The theory is often invoked in one fashion or another to support environmental protection and the nebulous concept of “social justice” and it is used to justify increased regulation or litigation against farming practices particularly those believed to be inhumane – the California Proposition 12 litigation is a recent example.[13]
Public Trust Doctrine. The public trust doctrine is an ancient concept that guarantees certain rights to the public and causes other rights to be vested in private owners. Indeed, in the United States, one of the fundamental Constitutional rights denoted in the Bill of Rights (as noted earlier) is that of the ownership of private property. Fifth Amendment, U.S. Constitution. As a fundamental Constitutional right, any infringement on the right is to be subjected to “strict scrutiny” by a court.[14] Of course, the government (state and federal) retains the right to “take” private property for a public use, but only upon the payment of “just compensation.” But any expansion of the doctrine does an “end-run” around the claim that the government has committed a taking that requires compensation – the theory being that the public rights pre-existed and private property rights are automatically subject to them. An expansion would bring non-justiciable political questions into the courts. This technique has been tried with attempts to get the courts to decide allegations of harm and restrict usage of private property based on “global warming.” Largely, the courts have refused citing lack of standing, congressional delegation to administrative agencies and that such claims are non-justiciable political questions. The notion that vested (e.g., settled, fixed, inalienable) rights can be usurped by an expanded application of the public trust doctrine makes it easier for regulation of property rights to occur without any concern that a non-physical taking of the property has occurred that would require the private property owner to be compensated. That’s because the private property taken, the theory is, was a right that the owner never had to begin with. In turn, an expanded public trust doctrine would require state (and, perhaps, federal) governments to take action to preserve public rights. If they failed to do so, the legal system would be used to force action. The courts, then, become a sort of “super legislature” via the public trust doctrine – a “court packing” technique that is off the radar and out of public view.
How could an expanded public trust doctrine apply? For farmers and ranchers, it could make a material detrimental impact on the farming operation. For instance, many endangered species have habitat on privately owned land. If wildlife and their habitat are deemed to be covered by the doctrine, farming and ranching practices could be effectively curtailed. What about vested water rights? A farming or ranching operation that has a vested water right to use water from a watercourse for crop irrigation or livestock watering purposes could find itself having those rights limited or eliminated if, under the public trust doctrine, a certain amount of water needed to be retained in the stream for a species of fish. One might argue that the government already has the ability to place those restrictions on farming operations, and that argument would be correct. But such restrictions exist via the legislative and regulatory process and are subject to constitutional due process, equal protection and just compensation protections. Conversely, land-use restrictions via the public trust doctrine bypass those constitutional protections. No compensation would need to be paid, because there was no governmental taking – a water right, for example, could be deemed to be subject to the “public trust” and enforced without the government paying for taking the right. That’s a much different outcome than the government imposing regulations on property uses that trigger compensation for an unconstitutional regulatory taking. In essence the government, via the doctrine, acquires an easement for the protection of certain designated natural resources (such as wildlife and wildlife habitat) that are deemed to be in the public interest. Instead of elected politicians making these decisions and being accountable to voters, the courts are the enforcers.
Conclusion – the “Rule of Law” vs. “Social Utility”
Ultimately, the “constitutional revolution” sought by collectivist theorists is an attempt to bypass the high cost of the Takings Clause by prioritizing social utility – what they deem best for the climate or society – over the established rule of law. In the American system, the law exists specifically to protect the individual from the changing whims of the majority. By rebranding vested private rights as “public trusts” or “social privileges,” these advocates seek to grant the state control over the rangeland without the constitutional burden of paying for it.
This shift represents a frontal assault on the Constitution and the legacy of the Homestead Act,[15] moving land from individual ownership and utility toward a federally managed collective with centralized oversight. If the government intends to “reckon” with the past or pursue a new era of land management, it cannot do so through the back door of administrative fiat or the expansion of ancient legal doctrines to avoid accountability. Instead, it must utilize the front door of the legislative process and be prepared to open the checkbook. The sanctity of private property requires that any such “reckoning” be met with the heavy toll of “just compensation” as mandated by the Fifth Amendment.
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[1] This is known as the “Major Questions” Doctrine.
[2] 16 U.S.C. §§431-433.
[3] 597 U.S. 697 (2022).
[4] 603 U.S. 369 (2024).
[5] 43 U.S.C. §315
[6] The claim by the academics that espouse a Marxist/Socialist view of property rights is that undoing land titles is necessary to “correct” historical “injustices.”
[7] 708 F.3d 1340
[8] 409 U.S. 488 (1973).
[9] Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978).
[10]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023)
[11] See, e.g., Wynn v. Vilsack, 545 F. Supp. 3d 1271 (M.D. Fla 2021)(nationwide preliminary injunction issued; using race as the sole criterion for aid failed “strict scrutiny” because it was not narrowly tailored to remedy specific instances of past discrimination); Miller v. Vilsack, No. 4:21-cv-0595-O, 2021 U.S. Dist. LEXIS 264778 (N.D. Tex. 2021)(preliminary injunction granted; government’s interest in “racial balancing” is “abhorrent to the concept of equal protection”); Faust v. Vilsack, 519 F. Supp. 3d 470 (E.D. Wis. 2021)(temporary restraining order issued; USDA’s program loan forgiveness program lacked a “strong basis in evidence” for the race-based remedy and would cause irreparable harm to excluded farmers); Holman v. Vilsack, No. 21-1085, 2021 U.S. Dist. LEXIS 127334 (W.D. Tenn. 2021)(preliminary injunction granted against enforcement of race-based loan forgiveness program); Strickland v. USDA, 736 F. Supp. 3d 469 (N.D. Tex. 2024)(injunction issued against enforcement of Emergency Relief Program due to race-based criteria).
[12] 560 P.3d 1234 (Mont. 2023). The case is a warning for other states, but there is a distinction between state and federal constitutional rights.
[13] National Pork Producers Council v. Ross, 598 U.S. 356 (2023).
[14] Unfortunately, however, many property regulations are actually reviewed under “rational basis” review unless they trigger a physical taking (see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) or a total regulatory taking (see, e.g., Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992). The fact that property rights are a fundamental constitutional right should trigger higher scrutiny.
[15] P.L. 37-64, 12 Stat. 392 (May 20, 1862).