The dominant view of property today is the “bundle” theory. According to this view, property consists of a number of separate rights, such as the rights to use, disposal, and trade. Metaphorically, property consists of a “bundle of sticks.” One of those sticks can be removed, but a bundle remains. Similarly, one of rights of property can be violated but a bundle remains.
This is a dangerously flawed view. Rights pertain to action–use, disposal, trade, etc.–are all actions. But property pertains to material values. The things that we call property–land, homes, automobiles, cash, computers, etc.–are material values. The right to property pertains to the actions that we can take in regard to material values.
For example, the right to property protects our freedom to create new values, to offer those values for sale to others, to purchase values from willing sellers, and then to use those as we choose. Property is material values; the right to property protects our freedom of action in regard to material values.
While there are many dangers in the “bundle” theory, one of the most pernicious is that property rights can be justified because the owner can still use the property. For example, in the 1960s, Penn Central wanted to construct a fifty-five-story office building on top of Grand Central Station in New York City. The city’s Landmarks Preservation Commission denied a permit for the construction, and the case eventually made its way to the United States Supreme Court. In writing for the majority in favor of New York City, Justice William J. Brennan, Jr., declared,
New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s reasonable expectation concerning the use of the parcel.
In other words, according to the Court, because Penn Central could still use its property, no violation of property rights had occurred. But the fundamental issue isn’t whether the company could use its property, but whether it could use it as the company desired.
The “bundle” theory has been used to “justify” violations of property rights time after time. For example, every regulation restricts the creation, use, or trade of property. While acknowledging these restrictions, advocates of regulations frequently point to the “bundle” of rights that remain. “Sure,” they say, “you can’t use your property as you choose, but you can still use it as you have.” Or, “we admit that the value of your property has been significantly diminished, but it still has some marginal value.” In essence, they acknowledge that “some” property rights have been violated, but not “all” of them.
In truth, if an individual is not free to take all of the actions he chooses in regard to material values, then his right to property has been violated. The actions that we can take regarding material values are not a “bundle” of rights, but a comprehensive whole. To restrict one of those actions is to violate the right to propery.