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“Texas is open 100 percent,” Gov. Greg Abbott (R) said in a Twitter video Monday, “and we want to make sure you have the freedom to go where you want without limits.” To that end, Abbott said, he signed a law banning any business or government entity in the state from requiring documentation of a COVID-19 vaccination or recovery for entry (commonly called vaccine passports).
Abbott cast the legislation as a bold strike for freedom, but it’s nothing of the sort — not in the sense the American right has traditionally understood the term, anyway. Though it may be said to enhance consumer choice, it is a betrayal of private property rights, which have long been core to visions of small government in the United States.
Protection of property is a founding principle in our country, where, in theory at least, “a man’s home is his castle.” Thomas Jefferson substituted the more whimsical “pursuit of happiness” at the end of philosopher John Locke’s grouping of “life, liberty, and property” in the opening of the Declaration of Independence, but that document and so many others from its era are deeply concerned with property rights. “It is sufficiently obvious, that Persons and Property, are the two great subjects on which Governments are to act,” said James Madison, the “father of the Constitution,” in an 1829 address, “and that the rights of persons, and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated.”
With this law, Abbott has separated them. He is announcing a right for Texans “to go where you want without limits” at the expense of the right of Texan business owners to determine what happens on their property. And Abbott isn’t alone in his newfound disregard for property rights. The same rejection is at work in Florida’s COVID-19 vaccine passport ban, which most controversially extends to the cruise ships that depart from its ports. That rule is being contested in federal court, as cruise lines are caught between CDC guidelines and company preference on one side and Florida law on the other.
Florida Gov. Ron DeSantis (R) also recently signed a bill which keeps social media companies from deplatforming public officials and candidates for office if they wish to operate in his state. The law is widely expected to be struck down in court, probably on First Amendment grounds, but it’s a good case study of this new posture toward property on the right. It tells consumers they have a right to engage the services of a private company on their terms of choice, and it tells business owners they can’t control how their property is used or by whom.
Incidentally, I don’t say all this as a fan of vaccine passports. I’ve written repeatedly — and from quite early in the pandemic — in opposition to the idea. I think vaccines are great, but the civil liberties hazard of any sort of centralized database is enormous, and we can’t let vaccine refusers hold the rest of us hostage forever. We have to get back to normal and allow refusers to experience the risk they’ve chosen. I support Abbott’s ban of COVID-19 vaccine passports for government entities, and if I owned a store or restaurant, I wouldn’t ask my customers about their vaccination status.
But here’s the thing: I should have the right to ask.
If right-wingers — I can’t bring myself to say “conservatives,” because they’re not conserving anything here — are committed to this rejection of property rights, it’s a shocking and shortsighted shift. It’s shocking because of the sheer distance from where small-government types have been on this issue for decades. Agreement on property rights was a major basis for the erstwhile Republican-libertarian alliance.
The vaccine passport issue is new to the pandemic, of course, but the Florida social media law, similar legislation under consideration in other red states, and broader calls for the government to force “big tech” to “stop censoring conservatives” all point to the pre-pandemic origins of the shift I’m describing. It’s part of the right’s larger move away from the old free-market orthodoxy (which libertarians like me still support) and toward a new economic populism accompanied by a renewed vigor for culture war. These laws fit nicely with both trends, allowing Texas and Florida Republicans to take a right-wing cultural stand via state meddling in the market.
Yet, speaking of culture war, the shift is shortsighted because property rights were a major asset for the right in many religious liberty battles, as Reason’s Billy Binion reviews in light of Abbott’s ban. On questions like whether Catholic employers should be made to pay for employees’ birth control, whether conservative bakers should be forced to bake for a gay wedding, or whether Christian adoption agencies should be required to place children with same-sex couples, the right’s religious liberty position has long been buttressed by property rights: If you own the business, the argument goes, you should be able to make these calls as your conscience directs.
With this new stance, that buttress crumbles. The next time Abbott says — as he often has — the government should not “dictate what … citizens do with their private property,” no one should take him seriously. He’s happy to dictate when business owners want to do something he dislikes.