Intriguing Analysis of Constitutional Loophole--Private Property Barely Protected

Excerpts:

[FONT=Times New Roman, Times, serif]Why Come Together to Form This Thing Called Government?[/FONT]
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[FONT=Times New Roman, Times, serif]From the pen of Thomas Jefferson:[/FONT]
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[/FONT][FONT=Times New Roman, Times, serif]"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…."[/FONT]
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[/FONT][FONT=Times New Roman, Times, serif]Sadly, Jefferson’s use of the phrase “pursuit of happiness” either accidently or purposefully confused what I believe to be the more appropriate terminology in support of the formation of government, offered by John Locke:[/FONT]
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Locke argued in his Two Treatises of Government that political society existed for the sake of protecting "property", which he defined as a person's "life, liberty, and estate". [/FONT]
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[/FONT][FONT=Times New Roman, Times, serif]Finally, from Frederic Bastiat: "[/FONT][FONT=Times New Roman, Times, serif]Each of us has a natural right – from God – to defend his person, his liberty, and his property….if every person has the right to defend – even by force – his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly….And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute."[/FONT]
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[/FONT][FONT=Times New Roman, Times, serif]If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense...
[FONT=Times New Roman, Times, serif][T]he concept is the protection of private property. If the concept of protection of private property is not explicit and absolute in the contract, then I find no reason to go in league with others to form “government.”..

There is no intent in the Constitution to provide for the protection of private property, as there is no explicit statement in the document for the protection of private property. Nowhere does the Constitution explicitly provide for this as a role for the government being formed. There is no pact or agreement for government to provide the one and only useful function for which I would find reason to offer support – that being to protect my property.[/FONT]
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From: http://bionicmosquito.blogspot.com/

Found out about it here: http://lewrockwell.com/rep3/constitution-fatal-flaw.html

I disagree.

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be.....nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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If I "own" the land, I own the land. That the "state" can appropriate my land under the law is different than me being in mere "control" of "my" land, to the exclusion of all other "persons", at the pleasure of the state. The absence of any mention of land "ownership" in the Founding Document could have been intentional, see below; or unintentional, also see below.

Amendment 10 - Powers of the States and People. Ratified 12/15/1791.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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We all should understand and advocate that what is not stated that the "state" can do, or is stated that the "state" can not do, it is implicitly stated that only the people can or can not do.

Facts are facts, the laws of society are such now that the excruciatingly simple concept of the "ownership" of land is now being questioned, the concept being made overly complex. The practicality of continued ownership of your land when the "state" deems it proper to appropriate your land is a different and complex issue. Kelo v. New London

A practical matter it is also, the continued ownership of my land, if I fail to pay Caesar his tribute.

This question regarding land ownership is part and parcel of the "living breathing" crowd.

OC for ME said:

I disagree.If I "own" the land, I own the land. That the "state" can appropriate my land under the law is different than me being in mere "control" of "my" land, to the exclusion of all other "persons", at the pleasure of the state. The absence of any mention of land "ownership" in the Founding Document could have been intentional, see below; or unintentional, also see below.

We all should understand and advocate that what is not stated that the "state" can do, or is stated that the "state" can not do, it is implicitly stated that only the people can or can not do.

Facts are facts, the laws of society are such now that the excruciatingly simple concept of the "ownership" of land is now being questioned, the concept being made overly complex. The practicality of continued ownership of your land when the "state" deems it proper to appropriate your land is a different and complex issue. Kelo v. New London

A practical matter it is also, the continued ownership of my land, if I fail to pay Caesar his tribute.

This question regarding land ownership is part and parcel of the "living breathing" crowd.

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Did you read the entire essay at the link? He expressly discusses the 5A and another place the word property is used in the constitution.

He also discusses property rights in the context of Locke--that a person has a property right in his own person, his own produce, and his rights. The author doesn't articulate it clearly and succinctly, but he touches on it. So, he's talking about more than just real estate.

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I think the essay is brilliant. It could use a little polish, but hey, its a blog post.

I find it jaw-dropping because it is so right and so little recognized. The constitution does not expressly include the most fundamental reason for people associating and forming a government. Remember that John Adams later wrote that some of the ideas in the Declaration of Independence were trite at the time they were written (referring to the Lockean principles in paragraph two). Adam's "trite" comment is understandable in light of Locke's Second Treatise being published 87 years earlier in 1689. So, the Framers knew about it.

Oh, the constitution hints at private property rights being the reason--the preamble's explanations about justice, common defense, domestic tranquility, blessings of liberty. But, the constitution doesn't say it expressly. Nor with the clarity of Locke or even the clarity of the blogger. Thus, it leaves wide open a loophole the size of the Gateway Arch through which to drive all sorts of taxes and regulations destructive of economic rights. Lacking the context of property rights in the preamble, various provisions like the General Welfare clause, and the Necessary and Proper clause can be distorted to justify all sorts of things.

The blogger's point gives additional weight to the implications arising from the constitutional convention's refusal to include a Bill of Rights, the Federalists resistance to a Bill of Rights during the ratification period, and the Sedition Act's too-obvious violation of free speech and free press.

Citizen said:

Did you read the entire essay at the link? He expressly discusses the 5A and another place the word property is used in the constitution.

He also discusses property rights in the context of Locke--that a person has a property right in his own person, his own produce, and his rights. The author doesn't articulate it clearly and succinctly, but he touches on it. So, he's talking about more than just real estate.

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I think the essay is brilliant. It could use a little polish, but hey, its a blog post.

I find it jaw-dropping because it is so right and so little recognized. The constitution does not expressly include the most fundamental reason for people associating and forming a government. Remember that John Adams later wrote that some of the ideas in the Declaration of Independence were trite at the time they were written (referring to the Lockean principles in paragraph two). Adam's "trite" comment is understandable in light of Locke's Second Treatise being published 87 years earlier in 1689. So, the Framers knew about it.

Oh, the constitution hints at private property rights being the reason--the preamble's explanations about justice, common defense, domestic tranquility, blessings of liberty. But, the constitution doesn't say it expressly. Nor with the clarity of Locke or even the clarity of the blogger. Thus, it leaves wide open a loophole the size of the Gateway Arch through which to drive all sorts of taxes and regulations destructive of economic rights. Lacking the context of property rights in the preamble, various provisions like the General Welfare clause, and the Necessary and Proper clause can be distorted to justify all sorts of things.

The blogger's point gives additional weight to the implications arising from the constitutional convention's refusal to include a Bill of Rights, the Federalists resistance to a Bill of Rights during the ratification period, and the Sedition Act's too-obvious violation of free speech and free press.

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I think I read the entirety of both.

When Mr. Mosquito states:

A question that I ponder often is this: can a person really own land?

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And then very shortly there after Mr. Mosquito again states:

I have read arguments that suggest that land cannot be owned.

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Am I to interpret that these statements are to also include non-land property?

It is nonsensical to interpret the meaning of "private property" as anything other than land. The 5A, in my view, covers all of my non-land property with the "life, liberty, or property" clause immediately preceding the "private property" clause. There is no requirement that I own land, so, the "taking of private property" clause could not apply to me. If I do not own land I certainly own property; clothes, a pick-up truck, a properly holstered pistol, and I shall not be deprived of my property (by the "state") without due process of law[SUP]1[/SUP].

I submit that anyone who extends the requirement of "just compensation" to my clothes, pick-up truck, or my pistol" is engaging in "constitutional chicanery" instigated for the purpose of further expanding the meaning of the Constitution into areas that were never intended by the Founders. A tactic used by the "living breathing" crowd.

As to Mr. LewRockwell's monograph;

Mr. LewRockwell states:

This amendment establishes ground rules of how an individual might be deprived of property, but nowhere is there anything said specifically about the role of government in protecting private property – there is no pact of the type I suggest.

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Mr. LewRockwell does not maintain the distinction between "property" and "private property" as I think the Constitution does and by extension the Founders do. Or, at a minimum he uses the two terms interchangeably, which I think obfuscates the importance of the exact phrasing of the 5A regarding "property" and "private property." But, that is me and I may be over analyzing the 5A.

I fear that Mr. LewRockwell is lamenting the absence of a clause in the Constitution that does not require the central government to protect his property, and mine. This arrangement I like. Mr. LewRockwell may be a closet "living breathing" crowd member and he may not even realize it. I generally enjoy his works and agree the majority of the time with his observations and conclusions. On this particular issue, not so much. I am a literalist-anti-fedralist-fedralist where the Constitution is concerned.

Regarding Locke, I am not convinced that he would not have been a Federalist if he had participated in the creation of the Constitution. I think it would be more likely that he would have been a Anti-Federalist, but there is no guarantee. He wrote his stuff long before the time of our Constitution and the attendant historical circumstances experienced by those who wrote the Constitution.

The priciples that the Founders codified into the Constitution stand the test of time and it takes principled citizens to guard that perfect yet fragile document.

[SUP]1[/SUP]This statement is not intended to instigate the seizing (depriving me of my property) of my pistol for "officer safety" debate.

For some reason when I tried to quote post #4 by OC, I got the message "website unavailable". So, I gotta reply without a quote.


Its a blog post for gosh sake, not a treatise or thesis. Of course there are going to seeming inconsistencies. If I read every post here with the same stringency, I'd be forever getting into unnecessary arguments.

Also, you understand its not Rockwell's work? Its author is a blogger named Bionic Mosquito.

The simple fact is that Locke and others did tie rights to property saying we have a property right in ourselves in so many words. There is no reason property and private property cannot refer to the same thing without applying exclusively to real estate. The blogger didn't expressly define it that way. And, I would find it exceedingly odd for a fellow as familiar with freedom principles as the blogger obviously is to think of property or even private property to be limited to only real estate. There is no reason the blogger cannot be talking about all personally owned objects in today's understanding of the term while the 5A refers to real estate. Nor, do I have any information that just because eminent domain is usually applied to real estate, it does not also protect other personally owned items.

I understand and agree with Locke when he says we cannot truly own land. But, that is because I understand it in the context he gives--that the individual occupying the parcel didn't create the dirt, which is true. Insofar as the whole business of real estate ownership is just a system of ideas and organizing, it makes sense. It makes further sense that we recognize ownership as part of keeping things civil and organized. Because the farmer didn't create the dirt on his farm, his ownership cannot be absolute, but we can treat it as though it is absolute from a viewpoint of keeping things civil, fair, and organized. We can treat the abuses of eminent domain as violations of this invented absolute without destroying the whole concept of ownership. And, besides, if the king wants your land bad enough, then he is going to violate whichever system of ownership recognition you use. He won't care how absolute you treat your ownership.

I don't recall Locke saying someone else could come in and take over owned-but-unworked land without fairly compensating the owner. Separately, remember that he wrote in a very agricultural era, and maybe did not even consider that real estate could be held as an investment but idle. I know he didn't expressly say unworked investment land could be taken by someone willing to work it. And, his comment about transferring land to someone willing to work it cannot be taken as an absolute because it would mean entire cities could be seized and razed by farmers or miners. Its an absurdity Locke couldn't possibly have intended.

I would bet on Locke being an anti-federalist. The parliaments and monarchs of his time were putrid. He would have known the corruption. I'll bet I'm not far off the mark in saying the whole point of 2nd Treatise was to lay the ground rules of government on something less susceptible to abuse than the justifications already in use at the time.

I disagree. Our Constitution clearly, in my view, recognizes our right to own land. Yes God made the dirt, but I now own the dirt to the exclusion of all other citizens or the state. Our Constitution and our laws reinforce this "right of ownership" as unquestionable, inviolate. The Constitution does allow the state, and only the state, to take my land (private property) with just compensation without my agreement. No citizen may take my land without my agreement.

The notion that any fallowed ground that I own could be forfeit, for lack of working, is repugnant to our laws and Constitution, especially when Locke does not differentiate between King or subject. What Locke believed nearly 100 years prior to our Constitution is framed by the events of his time, in his country, and by the acts of his King. The Founders had no such distractions to taint their view of the right to own property privately.

As I stated earlier, it is evident to me that the Founders clearly differentiate between the dirt under my feet, that I own, and the pick-up truck I park upon my land.

My problem with Mr. Mosquito is that he had the conversation with himself to begin with. Mr. LewRockwell, also seems to have similar conversations with himself.

Good stuff, this conversation. +1 to you Sir.

OC for ME said:

I disagree. Our Constitution clearly, in my view, recognizes our right to own land. Yes God made the dirt, but I now own the dirt to the exclusion of all other citizens or the state. Our Constitution and our laws reinforce this "right of ownership" as unquestionable, inviolate. The Constitution does allow the state, and only the state, to take my land (private property) with just compensation without my agreement. No citizen may take my land without my agreement.

The notion that any fallowed ground that I own could be forfeit, for lack of working, is repugnant to our laws and Constitution, especially when Locke does not differentiate between King or subject. What Locke believed nearly 100 years prior to our Constitution is framed by the events of his time, in his country, and by the acts of his King. The Founders had no such distractions to taint their view of the right to own property privately.

As I stated earlier, it is evident to me that the Founders clearly differentiate between the dirt under my feet, that I own, and the pick-up truck I park upon my land.

My problem with Mr. Mosquito is that he had the conversation with himself to begin with. Mr. LewRockwell, also seems to have similar conversations with himself.

Good stuff, this conversation. +1 to you Sir.

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The two views are not necessarily incompatible.

Here's a thrown loop--Thomas Jefferson, in a letter to (Madison?) discussed the idea that no generation can bind a later generation. Meaning, he wondered whether there shouldn't be a new constitutional convention every 20 years or so. He's right. I didn't sign the constitution, nor consent to it. How can I possibly be bound by it or the laws created by its so-called delegated authority from over ten generations ago?

Similarly, insofar as no person created the dirt, no person can possibly have the authority to transfer absolute ownership to you. The guy who sold it to you didn't create the dirt, nor the person who sold it to him, nor...not even the first guy to occupy that piece of countryside. He didn't create it; he couldn't possibly have absolute ownership, nor could he transfer that to the first buyer after him. We just recognize your ownership as a means of keeping things civil, orderly, and fair. It is in our best interest to be very careful about any exceptions. Certainly, I wouldn't advocate transferring a fallow field out from under you.

Citizen said:

The two views are not necessarily incompatible. Here's a thrown loop--Thomas Jefferson, in a letter to (Madison?) discussed the idea that no generation can bind a later generation. Meaning, he wondered whether there shouldn't be a new constitutional convention every 20 years or so. He's right. I didn't sign the constitution, nor consent to it. How can I possibly be bound by it or the laws created by its so-called delegated authority from over ten generations ago?

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Interesting premise, though very flawed. I did not sign a law that says that it is unlawful to OC in a school, yet I can go to jail for violating the law of the land that I did not sign. Or, did I even have a chance to vote against all of those who voted to infringe upon my right to defend myself and my loved ones who attend a state institution, if possible. The constitution defines what the "state" may or may not do. If the Constitution is not working for us anymore then the Founders, in their infinite wisdom, allowed for us common folks, who did not sign that magnificent document, to disagree with their forethought and change it.

Similarly, insofar as no person created the dirt, no person can possibly have the authority to transfer absolute ownership to you. The guy who sold it to you didn't create the dirt, nor the person who sold it to him, nor...not even the first guy to occupy that piece of countryside. He didn't create it; he couldn't possibly have absolute ownership, nor could he transfer that to the first buyer after him. We just recognize your ownership as a means of keeping things civil, orderly, and fair. It is in our best interest to be very careful about any exceptions. Certainly, I wouldn't advocate transferring a fallow field out from under you.

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I certainly appreciate that. But, again I disagree, prior to you desiring to not take my fallowed field that is. I submit the below for your consideration. Obviously I am not the author, but I like the way this fella thinks.

Genesis 1-26 Then God said, “Let us make man in our image, after our likeness. And let them have dominion over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing that creeps on the earth.” 27 So God created man in his own image, in the image of God he created him; male and female he created them. 28 And God blessed them. And God said to them, “Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.”

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If we are to credit God for our unalienable rights, as the Founders clearly did, then I will not second guess him. Or his intentions for me to have dominion over my tiny piece of the earth. As i stated earlier, I believe the Founders wanted their intentions, regarding my dirt, to be very clear. The state shall have no say as to how I disposition my dirt. It is, as you correctly point out, to be a civil transaction, conducted between civilized citizens.

OC for ME said:

Interesting premise, though very flawed. I did not sign a law that says that it is unlawful to OC in a school, yet I can go to jail for violating the law of the land that I did not sign. Or, did I even have a chance to vote against all of those who voted to infringe upon my right to defend myself and my loved ones who attend a state institution, if possible. The constitution defines what the "state" may or may not do. If the Constitution is not working for us anymore then the Founders, in their infinite wisdom, allowed for us common folks, who did not sign that magnificent document, to disagree with their forethought and change it. I certainly appreciate that. But, again I disagree, prior to you desiring to not take my fallowed field that is. I submit the below for your consideration. Obviously I am not the author, but I like the way this fella thinks. If we are to credit God for our unalienable rights, as the Founders clearly did, then I will not second guess him. Or his intentions for me to have dominion over my tiny piece of the earth. As i stated earlier, I believe the Founders wanted their intentions, regarding my dirt, to be very clear. The state shall have no say as to how I disposition my dirt. It is, as you correctly point out, to be a civil transaction, conducted between civilized citizens.

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Jefferson's premise was "very flawed"? Because the constitution has an amendment provision? It doesn't matter how many amendment provisions it has, it still binds subsequent generations. And, even if its amendment process was extremely liberal, and very easy, I'm still held accountable to the government organs without having consented to it.

I don't recall where in Genesis God granted ownership to specific individuals for specific parcels of land. Also, saying God granted dominion to men is tautological--who else was He gonna grant dominion to? Bears--who can't write property records? Furthermore, from another angle, you conceded my argument. God gave dominion to Man. OK, piece of cake. Its granted to all of us and since it wasn't further clarified, the obvious conclusion is that we hold it in common.

I think you're arguing just for the sake of being contrary.

I agree with OC for Me -- also see 9th amendment - I think this covers it

not every right is enumerated in our constitution ... the 9th I think may cover this

Citizen said:

Jefferson's premise was "very flawed"? Because the constitution has an amendment provision? It doesn't matter how many amendment provisions it has, it still binds subsequent generations. And, even if its amendment process was extremely liberal, and very easy, I'm still held accountable to the government organs without having consented to it.

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His premise is flawed. 18th then the 21st Amendments. His call for a constitutional convention every twenty years? Providing a opportunity every 20 years to change the constitution? I am quite satisfied with the difficulty that lies in the amendment process and have no desire to see a review of the Constitution forced upon us every 20 years. "Legislating from the bench" is a different topic. Even Constitutional interpretations is a different topic.

I don't recall where in Genesis God granted ownership to specific individuals for specific parcels of land. Also, saying God granted dominion to men is tautological--who else was He gonna grant dominion to? Bears--who can't write property records? Furthermore, from another angle, you conceded my argument. God gave dominion to Man. OK, piece of cake. Its granted to all of us and since it wasn't further clarified, the obvious conclusion is that we hold it in common.

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Your interpretation relies upon what God did not say. I merely reiterate what he did say. God gave dominion of the earth to man. He did not say that all men have dominion over all of the earth at the same time, or even words to that affect. I am guilty of a literal reading of the bible. Please excuse this peculiarity.

I think you're arguing just for the sake of being contrary.

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It is unfortunate that you hold that view. I firmly believe that a literal reading of the Constitution is the appropriate manner in which to "interpret" the Constitution. To me, it seems that society is becoming more comfortable with a mutable, a more malleable Constitution, I am not comfortable with that notion.

The Constitution is changeable, but it must be immutable until changed. Glass can be mutable but once cooled it is immutable, then the glass can only be broken. However, a process exists to reshape glass for a future and different purpose, even broken glass.

Thank you for the lively discussion. I now have a better understanding of a topic that has always intrigued me. +1 to you Sir.