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.
Thanks for the quotation from one of our greatest Justices. He served with Marshall for decades.
So why did Story uphold the Mill Acts and apparently never rule against "squatter's rights."
bump
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.
They talked a little funny, but they sure were smart.
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.
Marshall is part of the reason why this is happening.
Marshall was perhaps the greatest defender of private property ever to sit on the court.
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.
Where in the Constitution?
Article III Section 2 has no meaning except through judicial review. How else could a Law of the Land be established?
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?
bttt
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.
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