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Supreme Court Justice Joseph Story on government respect for private property (1833)
Commentaries on the Constitution ^ | 1833 | Joseph Story

Posted on 06/24/2005 9:53:30 AM PDT by Constitutionalist Conservative

§ 1393. Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property, should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: eminentdomain; kelo; privateproperty; propertyrights; scotus
Seen in a blog entry by Glenn Reynolds.
1 posted on 06/24/2005 9:53:30 AM PDT by Constitutionalist Conservative
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To: Constitutionalist Conservative

Thanks for the quotation from one of our greatest Justices. He served with Marshall for decades.


2 posted on 06/24/2005 9:58:42 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

So why did Story uphold the Mill Acts and apparently never rule against "squatter's rights."


3 posted on 06/24/2005 10:01:17 AM PDT by LS (CNN is the Amtrak of news)
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To: Constitutionalist Conservative

bump


4 posted on 06/24/2005 10:04:17 AM PDT by jpsb (I already know I am a terrible speller)
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To: jpsb

John Adams, Defence of the Constitutions of Government of the United States
1787Works 6:8--9

Suppose a nation, rich and poor, high and low, ten millions in number, all assembled together; not more than one or two millions will have lands, houses, or any personal property; if we take into the account the women and children, or even if we leave them out of the question, a great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If "Thou shalt not covet," and "Thou shalt not steal," were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.


5 posted on 06/24/2005 10:45:40 AM PDT by Forrestfire ("To educate a man in mind and not in morals is to educate a menace to society." Theodore Roosevelt)
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To: Forrestfire

They talked a little funny, but they sure were smart.


6 posted on 06/24/2005 11:23:30 AM PDT by Cyber Ninja (His legacy is a stain on the dress.)
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To: Constitutionalist Conservative

That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint.


7 posted on 06/24/2005 11:33:50 AM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: justshutupandtakeit

Marshall is part of the reason why this is happening.


8 posted on 06/24/2005 11:37:00 AM PDT by Pyro7480 ("All my own perception of beauty both in majesty and simplicity is founded upon Our Lady." - Tolkien)
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To: Pyro7480

Marshall was perhaps the greatest defender of private property ever to sit on the court.


9 posted on 06/24/2005 12:05:35 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit
That may be, but Marbury v. Madison is why this is happening.
10 posted on 06/24/2005 12:13:44 PM PDT by Pyro7480 ("All my own perception of beauty both in majesty and simplicity is founded upon Our Lady." - Tolkien)
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To: Pyro7480

Apparently you labor under the delusion that that case created judicial review. It did not since federal law had been reviewed by the USSC a decade before MvM. And it was fully intended for the court to have that role as a review of our history prior to the ratification would show AND it was explicitly described within the Federalist as well as the Constitution itself.


11 posted on 06/24/2005 12:21:21 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

Where in the Constitution?


12 posted on 06/24/2005 12:31:31 PM PDT by Pyro7480 ("All my own perception of beauty both in majesty and simplicity is founded upon Our Lady." - Tolkien)
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To: Pyro7480

Article III Section 2 has no meaning except through judicial review. How else could a Law of the Land be established?


13 posted on 06/24/2005 12:33:21 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: LS
Not sure what you mean by "squatter's rights" (or what Story had to do with any rulings concerning that) -- but the concept of adverse possession does have deep roots in English common law.

As for me, I'm all in favor of adverse possession laws! Well, mainly out of self interest: I had to fight an adverse possession case pro se when a developer purposely destroyed part of my property that encroached over a corner of his lot -- even though I'd proved to him it had existed over 40 years.

I'm not in favor of SCOTUS looking to foreign law, but didn't our founders expect English common law to be used as a basis for American court decisions?

14 posted on 06/24/2005 12:36:08 PM PDT by gingersnaps
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To: Constitutionalist Conservative

bttt


15 posted on 06/24/2005 1:04:23 PM PDT by CGVet58 (God has granted us Liberty, and we owe Him Courage in return)
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To: gingersnaps
Well, (I'm not a lawyer) from your description, "Adverse possession" equal "squatter's rights. This is the case in American land law where a person can "squat" on land (private or federal) for 7 years and if he develops it (i.e., usually builds a house or farm), then that plot of land becomes his. This is to prevent "land barons" from just accumulating land that they never even see, let alone develop.

That pretty clearly is a blow against "pristine" property rights, because it is sayint that we favor developmental rights over your constitutional right to "sit on" as much land as you want. Some, including Hernando de Soto, cite this as THE most important land law in American history, because it provided the legal process by which people who actually possess land come into legal ownership of it---something that 90% of the world still lacks.

16 posted on 06/24/2005 5:19:31 PM PDT by LS (CNN is the Amtrak of news)
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