Government Land Grabs

EminentDomainia14Government land grabs are becoming more and more prevalent every day.  There are executive agencies taking private land through regulatory acts.  The federal government is seizing up more and more private land under the auspices of environmental preservation and national parks.  We are even seeing the military taking private land and calling it national security.   Our framers believed that the Right to secure property was vital to the preservation of Liberty.  Under what circumstances can the government legally and constitutionally take our land?

From John Locke, the father of our understanding of Natural Law, in his “II Treaties”:

“The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end (purpose) of Government, and that for which Men enter into Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos’d to lose that by entring into Society, which was the end for which they entered into it, too gross an absurdity for any Man to own. 

john-locke-portraitFor I have truly no Property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the Supream or Legislative Power of any Commonwealth, can do what it will, and dispose of the Estates of the Subject arbitrarily, or take any part of them at pleasure…

For a Man’s Property is not at all secure, though there be good and equitable Laws to set the bounds of it, between him and his Fellow Subjects, if he who commands those Subjects, have Power to take from any private Man, what part he pleases of his Property, and use and dispose of it as he thinks good.”

We have an inherent Right to acquire, possess, and secure private property.  That doesn’t mean that the government has a duty to provide all people with property.  It means that we have the Right to acquire it without government control and permission and once we acquire it, we have the Right to possess it and protect it.  The entire purpose for establishing government is to collectively protect the inherent Rights of the individual.  To accept that the government can operate contrary to its entire purpose, by taking those Rights instead of protecting them, Locke calls that a “gross absurdity.”

Locke’s principle of the inherent Right to acquire and possess land is reaffirmed by the Supreme Court in 1795:

scotus“From these passages, it is evident, that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of man. Men have a sense of property: property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects that induced them to unite in society. No man could become a member of a community, in which he could not enjoy the fruits of his honest labor and industry. The preservation of property, then, is a primary object of the social compact…”  Vanhorne’s Lessee v. Dorrance, US, 1795.

The government should not arbitrarily take property from the people.  Arbitrary taking is a clear violation of the Constitution and as the Supreme Court so eloquently states, it is contrary to the primary object of government.  But not only that, James Madison explains that arbitrary taking of private property is the mark of an “unjust government”, an act of “complete despotism:”

“That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism.” James Madison, Property, 1792

The principle of the inherent Right to possess is embodied in the 5th & 7th Amendments to the Constitution when it declares that “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

US-Constitution-compressed.jpgNotice the three restricting elements: due process, public use, just compensation.  How do we determine what is adequate due process and what is just compensation?  According to contract law, the law that is controlling over the interpretation of the Constitution, we must look to the framers of the Constitution for guidance.  Alexander Hamilton says,

“It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.” Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly, 6 Feb. 1795

Due process is an act of the courts of justice, not an act of the legislature.  It is not within the delegated power of the legislature to pass a law that takes your land, the legislature’s only power is to negotiate a settlement with the land owner.  When that negotiation fails, any taking must be facilitated through the courts via proper application of due process.  How must that be done?

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” – 7th Amendment

When the government attempts to take any property valued at more than $20, due process means a trial by jury of our peers.  This means that private property should not be a legislative act.  Private property should not be taken by a single judge, or even a tribunal of judges.  Private property should not be taken by an executive agency.

The Supreme Court in Vanhorne’s Lessee v. Dorrance explains that, in reality, there are only 3 ways a private citizen can legally and constitutionally give up their private property Rights.

Jury“Public exigencies do not require, necessity does not demand, that the legislature should, of themselves, without the participation of the proprietor, or intervention of a jury, assess the value of the thing, or ascertain the amount of the compensation to be paid for it. This can constitutionally be effected only in three ways.

  1. By the parties–that is, by stipulation between the legislature and proprietor of the land;
  2. By commissioners (neutral third party arbitrators) mutually elected by the parties (the land owners & the legislators); or
  3. By the intervention of a jury.” (clarification mine)

What we can conclude by the application of these principles and the accompanying law is that:

  1. The acquiring and securing of private land is an inherent Right of men, not government;
  2. Government is established with the purpose of securing private property Rights;
  3. Government is not authorized take land arbitrarily;
  4. Government cannot be the one to determine the value of the compensation;
  5. Compensation is set by agreement of the land owner or by a trial by jury of peers;
  6. Government Executive Agencies cannot take land, cannot negotiate the taking of land, and are not the legal parties to the taking of land.
  7. The only legal and constitutional negotiating parties to the taking of land are the land owners and the legislators;

This Supreme Court in 1795 believed that if the federal government could take land from private land owners outside these limited constitutional parameters, that government would,

“display the dangerous nature of unlimited authority; it would [be] an exercise of power and not of right. Such an act would be a monster in legislation and shock all mankind…

james-madison-smallIt is inconsistent with the principles of reason, justice and moral rectitude; it is incompatible with the comfort, peace and happiness of mankind; it is contrary to the principles of social alliance, in every free government; and lastly, it is contrary both to the letter and spirit of the constitution.  In short, it is what every one would think unreasonable and unjust in his own case.”

James Madison made a plea, in 1792, to the people of America and for future generations:

“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions….

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.”

Do we have a just government?  Does our government deserve the full praise due to wise governments?  Do our legislatures, courts, and governors equally respect the rights of property and the property in rights?  This is our real litmus and this is one of the ways that history will judge America.