 Aloha and welcome to Ehana Kako. We're here every week on the Think Tech Hawai'i Broadcast Network. I'm Kei Lee Akiina, president of the Grass Root Institute. Well, here in Hawai'i we have something that is an extremely precious commodity. It's property. Well, we know that land is very precious to us, but our bodies are property, our work is property, our cars are property, our homes are property, and sometimes we don't think a lot about our property rights. But there are some folks in our country who are at the vanguard of defending property rights, something that comes from our Constitution. And I've got two of them today. We're going to have an exciting conversation about the importance of property rights. I've got with me today Timothy Sandofer, who is the head of litigation at the Goldwater Institute, and executive vice president at the Goldwater Institute, Christina Sandofer. They've written a book that kind of summarizes the situation of property rights in the entire country called Cornerstone of Freedom, Property Rights, the Cornerstone of Freedom. I'm going to ask them exactly why they call Property Rights the Cornerstone of Freedom, but you're going to find much of what they have to say very relevant to our situation here in Hawai'i. Please welcome to the program with me the Sandofer. Timothy Aloha. Glad to have you in Hawai'i. Thank you for having me on. And Christina, good to see you on the show again. Good to see you as well. We've had you Skype in in the past. We have. It's a pleasure to be here in person. Well, it's so wonderful to work closely with the Goldwater Institute, the Public Policy Institute, and your forte really is using the law to accomplish good public policy. Tim, you've joined the Goldwater Institute quite recently. That's right. I started in February after having worked at the Pacific Legal Foundation for about 15 years. Another closely aligned institution defending freedoms. That's right. Christina, tell us a little bit about Goldwater. Sure. So the Goldwater Institute, although it's headquartered in Arizona, it works in all 50 states. We work in capitals, courtrooms, and communities. And really what we try to do is enforce constitutionally limited government and protect people's constitutional rights. You're an attorney as well. What are some of the big cases that Goldwater is known for? Well, we do a lot with property rights, which we'll be talking about today. We also work on the Indian Child Welfare Act, which is a very unfortunate race based double standard that is given to Indian children who are going to be placed in foster families or adoption. So we work on those cases as well. In fact, if we just take a short moment here, we interviewed you about the Indian Child Welfare Act. It may sound good on the surface, especially to those who promote the rights of indigenous peoples. But what's the problem for society? That's right. Actually, Tim has taken over this case, and it's one of, he's our lead attorney on it. So why don't you go ahead and... Well, although it sounds like something we should support, Indian Child Welfare, the reality is that the law sets a lower standard for the protection of the health, safety, and welfare of Native American children. So it's actually counter That's right. It's harder to protect Native American children against abuse and neglect. That's right. And harder to find them safe, permanent, adoptive homes because the law says that child protective services, for instance, can't rescue a Native American child from an abusive situation unless, in some cases, that they prove beyond a reasonable doubt, which means that it is literally easier to put a defendant on death row than it is to find an Indian child, a safe, permanent, adoptive family that loves him. Well, you know, Cristina, you and I talked a little bit about how that might even become relevant to Hawaii with all of the lobbying taking place to have Native Hawaiians recognize as a federal Indian tribe. That's right. Yeah. And as Tim said, these are well-intentioned laws, but what they actually do is they end up harming the very people they're intended to help, and they perpetuate these race-based standards when, in America, we should be proud to be free individuals. We should be a color and race-blind society. Well, as a couple of attorneys who've gotten married, your first offspring is a book. That's right. In fact, when the book came out, we sent out little book announcements that were modeled on baby cards. We did. There you go. So congratulations. Thank you. It's a book. Property rights, cornerstone of liberty. First of all, Tim, would you define what we actually mean by property rights? Well, the great legal thinker, William Blackstone, defined private property as that right which we have over tangible objects of the world that is exclusive to everybody else. Well, didn't he coin the phrase a man's home is his castle? That was his predecessor, Sir Edward Cook, who was about 100 years before him. He was one of my great heroes, the greatest lawyer of all time. But what Blackstone came along about the 1760s, and he said he defined property rights in this way. And just like Lord Cook and like John Locke, the famous political philosopher, they all define property in such a broad term. What they're really meaning is your right to own even your own body, right? Your right to possess, say, your lungs or your liver. What right do you have to these things? You didn't earn them, right? You just inherited them. So a lot of people out there will deny that inherited property has any legitimacy. But I inherited my body. In fact, I found it. I didn't make it. I just appeared one day and there I was with my body, right? But the reason I have the right to it is because nobody else has a superior moral claim to it and I'm responsible for whatever my body does. If I were to punch somebody, I'd have to pay them damages, right? Well, it would seem that the idea of property rights is absolutely fundamental to freedom because if we don't have the right over our bodies, the right over the work that comes from our bodies or the land that we own or the right to do in our own domicile or home, what it is we choose to do, we really are forfeiting something that belongs to us. Well, you know, there's a very famous story about an economist who has once asked, what is the cause of poverty? And he burst out laughing and said, poverty has no causes. Wealth has causes. And that's right. We're born into this world totally poor. I mean, we don't even own any clothes when we're born, right? And what we, but what we have is our bodies and our ability to use our bodies to provide labor and then to trade that labor with other people for money, to build a home for ourselves, to farm for food. And you get more and more complicated to the point where you're talking about, you know, airplane engineers or whatever, but they're still doing basically the same thing, using their bodies to provide for themselves and their families as they see fit. That is what freedom means. Now, when we go back to the thinking of the founding fathers of the United States, property rights was extremely essential. In fact, life, liberty and the pursuit of property was the first formulation until the stylist got ahold of it, pursuit of happiness. But by happiness, the right to property was intended. And Christina, how aware today, 200 plus years later, with the growth of federal government, the growth of state governments and so forth, how aware is the average American as to our own property rights? I would say really not very aware. As you mentioned, property rights were extremely important to the founding fathers. And in fact, property rights really are the foundation of all of the rights or the cornerstone of liberty, as we say in our book. You really can't have any other rights if you don't have property rights, the right to own yourself, the right to own a church. If you couldn't own a church, then you couldn't have freedom of religion. If you can't own a printing press, you can't have freedom of speech. Our founding fathers knew that and in our constitution, they mentioned property rights more than any other right. And yet, fast forward to modern day. And although people, I think, are anately very aware of their property rights, even children, as we discussed in the book, sort of have a concept of mine and yours. And you actually have to teach children to share because it's innate. That's right. When we come back from a short break, we'll pick up on how important property rights are across our country and here in the state of Hawaii. I'm talking to the sandifers of the Goldwater Institute. We'll be right back after this short break. Aloha. My name is John Wahee. And I actually had a small part to do with what's happening today, served actually in public office. But if you don't already know that, here's a chance to learn more about what's happening in our state by joining me for a talk story with John Wahee every other Monday. Thank you. And I look forward to your seeing us in the future. Welcome back to Ehana Kako here every week on the Think Tech Hawaii Broadcast Network. I'm Kelea Iakina at the Grassroot Institute, where we like to say Ehana Kako. It sounds like a very old, venerable Hawaiian saying, a Pule Kako, which means let's pray together at the Grassroot Institute. We also like to say Ehana Kako, let's work together. Think of how terrible life would be if we didn't work together and instead worked against each other. So when it comes to building a better economy, government and society, we say let's work together. And that's why we work with groups like the Goldwater Institute who are defending freedoms across the nation and of course helping us to defend freedoms here in the state of Hawaii. So back to lead litigator as well as executive vice president of the Goldwater Institute, Timothy Sandifer and Christina Sandifer. Well, Tim and Christine, we've been talking about the importance of property rights and how little they are really appreciated. Tell me a little bit about what our government has been doing with respect to honoring property rights of the individual. So unfortunately property rights are really have become second class rights here in the United States. And instead of government viewing your right to own property as a right that you are presumed to be free to use your property as you see fit unless you're harming someone else, instead government looks at property as a permission, which is something we say in the book and something Tim's actually written in another book he's since written. And so what that means is that government gives you property. You don't own property and you have to now beg the government for permission to be able to use your private property to build on your land, to invite people into your home to take medications, all sorts of things. For example, if you want to put up another wall inside of your home, you want to cut a window or anything like that, it's now under government regulation. And you have to ask permission. And it's really a shame because when you look at rights like free speech, for example, you are presumed to be free to speak unless you are harming someone, then the government has to come in and prove that you're harming someone. Now aren't other rights, as you mentioned earlier, contingent upon our property rights? For example, we see an erosion of the First Amendment. There are many places which are private property owned by private institutions in which you can't practice First Amendment speech sometimes or perhaps the Second Amendment, the right to bear arms isn't permitted just to protect yourself and the constituents within your property. That's right. There's an old saying among lawyers, the law is a seamless web, but I think it's more more accurate to say rights are a seamless web. Our rights don't divide easily into a right for this and a right for that and a right to do this and a right to do that other thing. Our freedom is essentially one unit. And when you take away a person's freedom of speech, for instance, you find eventually that you have to start taking away their other rights also in order to keep that first deprivation in place. When you restrain a person using their private property rights, say to open a business, then you also have to prohibit them from advertising, which restricts their freedom of speech. You also have to prohibit them from trading, which inhibits their economic liberty. And as you said, if they go to an extreme and get a firearm to defend their rights, then you also have to take away their firearms. So all of our rights really are part of a single net, which is our individual freedom. And when our property rights are endangered, then all the other rights in that network are violated too. You know, your work at the Goldwater Institute takes you all across the nation and you've both had your eyes on Hawaii and the condition of our property rights, especially as we take a look at something which is very innovative for the 21st century, the shared economy. And here in Hawaii, we're beginning to experience ride sharing and home sharing and so forth. You've coined a term to talk about people opening their homes and making a little money on the side by giving hospitality. What is that phrase? Yeah, and that's home sharing, right? And it's funny you say it's innovative, and it really is, because now that we have online platforms like Airbnb and HomeAway, people are able, homeowners are able to connect with travelers in ways that they never have before. People are able to come visit new places and learn about homes. But really, the concept of sharing one's home of opening up your home to say, you know, a friend who wants to spend a night on the couch or a visitor coming into town or allowing somebody to babysit your home or watch your home while you're out of town, these things, you know, predate our nation. Anybody who has relatives on the mainland is well versed with home sharing. That's right. Now, what are some of the challenges you see for Hawaii in this area? So what we see, which is typical, unfortunately, when the market innovates, when people are able to connect with others and engage in mutually beneficial exchange, and the government has to come in and find a way to regulate it. And so this practice that has been long going on just fine for decades is now something that government is cracking down on here in this state and in other states as well. Government's saying, you can't open your home to visitors if you want to rent for short term. They call it short term rentals or vacation rentals. They're really cracking down here in Hawaii. It's terrible. They're actually sending interrogators out onto the beaches to question people, visitors about where they're staying. They're telling people who are having a hard time paying their bills because it's very expensive to live here that they can't make a little bit of extra money by renting out a room in their home or renting out their home when they're out of town. Well, it's interesting. Today, just this very day when you've arrived here in town, I received a letter this morning from a long-term owner of a vacation rental business. That business was thriving 15 years ago, but he chronicled how it has really faced regulation upon regulation and political challenge here so much so that he's decided to shut down the business and leave. Yeah, it's a real shame because you mentioned the principle of Ahana Kanako, private property rights allow us to work together in that way. It makes it so that rather than forcing somebody to do something or ordering them to do something or resenting them because they don't do something, you can trade with them so that they will do that thing. That's a peaceful way of getting along with people and accomplishing what both sides of that deal want, right? And instead, what we're being told by the government is that's not allowed. And as a result, it turns neighbors into spies against one another. And as Christina was saying, it creates a system that violates our other rights so that the government is sending agents to interrogate people and so forth. Well, another area that's hotly disputed in the shared economy is ride-sharing here in Hawaii, which is a very controversial issue. What's the private property frame of reference with regard to ride-sharing? Well, just as I own my home and I'd like to open it up maybe to visitors, I also may own a car. And there may be people who would like me to drive them around for a little bit of extra money. And again, the market has such a wonderful way of allowing people to work together to do that. So again, we see the internet being used to create these apps like Uber or Lyft, where people can say, hey, I'd like a ride to the airport. Well, you're heading that way. Could you pick me up and I'll give you a couple extra dollars for gas and it'll be a mutually beneficial exchange. And the funny thing is this is also something that's been going on for years and years. Well, when we come back from a short break, I want to take the devil's advocate side. Obviously, the right to share one's car or one's home or the right to regulate what goes on within one's house in terms of building a window or a wall have long been attached to the individual and the individual's property rights. But on the other side, we have the argument that the state needs to intervene for the safety of all society. I'm going to ask you a little bit about that when we come back. My guests, Timothy and Christine Sandifer of the Goldwater Institute will be right back. I'm Keely Akuna with the Grassroot Institute on the Hanukako on the Think Tech Kauai Broadcast Network. Don't go away. Aloha. I'm Richard Emory, host of Condo Insider, a weekly Thursday show at three o'clock that goes all summer long talking about issues living in a condo association. Each week we bring experts to talk about the rights and obligations of owners and boards of directors to successfully run their condominium. It's a great educational show, answers a lot of questions. We hope you'll visit us sometime. Aloha. For a very healthy summer, watch Viva Hawaii. We are here live on Mondays at 3 p.m. and we bring guests like our best health coach Elena Maganto. Eat well and follow her tips. Viva la comida saludable. Hello, this is Martin de Spain. I want to get you get excited about my new show, which is Humane Architecture for Hawaii and Beyond. We're going to broadcast on Tuesdays 5 p.m. here on Think Tech Kauai. Welcome back to Ehana Kako. We have a fascinating discussion taking place with Christina and Tim Sandifer of the Goldwater Institute on private property rights. But before we dive back into the conclusion, let me say mahalo to Think Tech Kauai and all the wonderful people who work here and who make this studio a great place from which about 35 hours of original content is broadcast all throughout the world. And you can find that content on ThinkTechKauai.com. Of course, you can also find our particular programs at grassrootsinstitute.org. Back to talking with Christina and Tim. There is some concern, however, for the safety of society. We don't want people getting into cars that are being driven by criminals that are going to rob them and beat them up and leave them lying on the side of the road. We don't want structures on private properties falling down and falling into the road or injuring other people or even injuring the property owners and so forth. And we don't necessarily trust that everybody's going to make good decisions about their primary property, their body. So we have to regulate what goes into the body and so forth. And there are many people who are sympathetic to that need. And indeed, I don't think you would disagree that there's some need in society to have regulation. But where do you draw the line? How do you respond to these arguments, especially with respect to the vacation rental industry or the ride-sharing industry? I think the real concern, you're absolutely right. There needs to be some sort of regulatory system to prevent people from hurting one another. The real problem is that people tend to underestimate the costs that are imposed by restrictions on private property rights or economic freedom and stuff like that because those costs are often invisible. If you make a law that says you're not allowed to start a business unless you get permission from the such-and-such bureaucracy, there's a lot of people out there who might come up with an idea for a new business. And then when they think, well, gosh, if I were to start this business, I'd have to go get permission from the such-and-such agency. And it's such a long process. It costs so much money. I'm just not going to bother. Well, then you can never measure the cost that has resulted from that restriction because the person never starts the business. And so we are deprived of their products or their services without realizing that kind of cost. We have to try and keep in mind the unseen costs that are imposed by restrictions on private property rights and economic freedom. And the best way to do that is to keep an eye on whether or not people's rights are being violated. If a person is harming another person, the government should stop. If the person is just doing something that you think is, you know, silly or unpleasant or something, maybe the government shouldn't intervene in those cases. So we underestimate the cost that regulation imposes. Would you also say we underestimate the capacity for society to regulate itself? For example, with ride-sharing, you've got technology that logs in who the driver is, who the passenger is. All of that is a matter of record in an extraordinary way. They evaluate each other and so forth. Once my daughter, well, sitting around the table, was you still a little girl, said, daddy, why do we have to inspect restaurants? If the food in a one-restaurant kills people, won't they just stop going there? And to some extent, isn't there some kind of self-regulation that can take place? Absolutely. All the things that you're talking about, restaurants have Yelp or, you know, Google reviews, right? And in fact, all of us do this. When we want to try a new restaurant or, you know, if I want to rent out a home from somebody, I will read the reviews and I'll read what people's previous experiences were. Well, you know, we've tried Airbnb a few times and I'm just amazed at how much information you have in the reviews. Yeah. Oh, absolutely. They tell you what sync is working and what not. You get far more information that's coming because the free market makes that information valuable than you'd get under a regulated situation. And unfortunately, often government wants to use a sledgehammer approach instead of a scalpel approach. So there are instances where we really do need to stop people from violating each other's rights or harming each other, but there are already traditional nuisance laws in place for those types of things. Let's take home sharing, for example. You know, people worry about noise and trash and traffic, you know, parking and things like that. We already have ordinances that protect people from all of those things and so what government should focus on is enforcing those ordinances. In California, the city of Santa Monica recently outlawed home sharing for under 30 days and spent over half a million dollars in just one year trying to catch somebody who is sharing their home for under 30 days. They only caught one person in an entire year and meanwhile, think of all that money and time and energy that could have gone to a police force to actually keep people safe. Well, this is a little bit counterintuitive. You're saying those who promote the share market, those who promote private property rights actually would call for a great older enforcement of law, but they're calling for greater enforcement of the existing laws. Exactly. Or in other words, to get people, catch them after they've broken the law rather than put up so many regulations that we try to control them from ever even getting close to breaking a law. Which tends to punish innocent people instead of the people who did the wrong thing in the first place. You're saying, well, you can't do this thing because somebody else abused it in the past. Well, maybe I wouldn't abuse it. You know, let me be free to make my own decisions and if I do harm, somebody punish me then. Well, in the midst of the conflict that we have here in Hawaii between protecting private property rights and looking out after the greater good of people in the name of safety, where have you seen some good solutions to that conflict? Arizona. Arizona. Why don't you tell us about it? Why don't you tell us, Christian? Well, so in Arizona we've passed... Thanks to the Goldwater Institute. And that's right, yeah. Well, about 10 years ago the Goldwater Institute designed a provision called the Property Ownership Fairness Act. And it's very simple. It just says that when government takes away your rights, your property rights, whether by coming in and taking your home from you or regulating your property rights away, it has to pay you for that. So if it's important for government to be able to regulate, it has to pay people for taking away those rights. And then we passed another law just this year called the Home Sharing Act to deal specifically with home sharing. And it says, again, government cities can enforce nuisance restrictions. They can enforce noise ordinances, trash ordinances. But if they're going to go beyond health and safety and really impose what are more aesthetic preferences on a community, they can't do that. They can't outlaw an entire industry. They can't tell people that they can't open their homes up to other people. Instead, they have to focus on true harms. And what this does is it sort of flips the burden of proof. This is a fancy term that we use as lawyers. But all that that means is I ought to be presumed to be free to use my property as I see fit to relate to my community and share things with my neighbors and community. And if I harm someone, government has to come and improve that I've done that. It requires government to think about the costs, to take the costs of regulation into consideration. Well, you know, those are two great remedies. First of all, to compensate people when they regulate them because they're actually hindering their property usage. And then secondly, to wait until you've actually had damage. Exactly. But the key here is to recognize that property is a commodity that has value. Right. And that when we are infringing upon or when we're limiting somebody's control over their property, we're actually harming their economic welfare. That's right, because property also creates value and to restrict what people can do with that property kills that value before it's ever even born. And so that's why it's important to have these restrictions that allow local communities to restrict harmful things or have a noise ordinance or whatever. But it doesn't allow these blanket bans. We don't ban backyard barbecues just because some people tend to get noisy and rowdy at backyard barbecues. We say you can have backyard barbecues, but if you are noisy and rowdy, then you're going to get in trouble for it. And that's the way it should be with home sharing also. I would imagine just picking up on what you've said that we probably have a satisfactory body of law for the protection of property. But what we don't have is a sufficient definition of what is included in private property. And that the more that we let people know, wait a minute, this is my private property. It has value the more we can bring the law to bear on protecting that. Absolutely. And you know, there's always going to be gray areas. And of course, when government doesn't set up a regulation that stops someone from acting, you always risk that some people may be harmed. But the presumption ought to be in those gray areas with the individual, with individual rights, with freedom. Because if you go down the other road, if you go down that slippery slope, then what you have is a system where government is only giving people permissions. It's not allowing people to be free to act. And at that point, as Tim said, you might as well ban all backyard barbecues. You might as well force people to get permission from government before they speak or do anything else. And then, of course, who's going to get the permission, the people who are closest to the government, who know somebody down at the city hall, who are best friends or even who bribe their way in. Or even in situations of public activism, those who use the government and the law to bully private property owners. Well, this has been a fascinating conversation. I wish we could go on and discuss it more, but people who are interested can get your book. What is the title of your book again? Cornerstone of Liberty and they can find it on amazon.com. Thank you very much. Well, Tim, thank you for being here today. Thank you so much. Christina? Thank you so much. Thank you. Well, we have a wonderful couple who are working together to advance the liberties of all people across the country. Tim and Christina Sandifer of the Goldwater Institute. I hope you'll get ahold of their book, Cornerstone of Liberty, Private Property Rights, Cornerstone of Liberty. And you can tune in to see more of this, Ehana Kako, discussion of our freedoms and how we can perpetuate them every week on the Think Tech Hawaii Broadcast Network. I'm Keeley Iakina with the Grass Root Institute. Until next week, aloha.