Posted on 08/04/2002 9:31:38 AM PDT by thinktwice
Edited on 04/14/2004 10:05:19 PM PDT by Jim Robinson. [history]
The American public can easily grasp the constitutional concepts of "free speech," or "free exercise of religion," or the "right to peaceably assemble." By contrast, the phrase "property rights" doesn't have the same cachet - it just lies there like some arcane principle that must be debated by lawyers before we know what it really means.
(Excerpt) Read more at ocregister.com ...
Yeah.
And, that cop's been posting a lot on FR too.
Ah yes, Blackstone. But the problem is that even Blackstone when using absolutist language about Property then listed 500 exceptions and modifiers to Property Rights in law as pointed out by Forrest McDonald so well in Novus Ordo Seclorum.
Russell Kirk was always careful to use the term "Prescriptive" when discussing Property.
"Third, conservatives believe in what may be called the principle of prescription ["that is, of things established by immemorial usage, so that the mind of man runneth not to the contrary"]. Conservatives sense that modern people are dwarfs on the shoulders of giants, able to see farther than their ancestors only because of the great stature of those who have preceded us in time."It took me a long time to fully appreciate why he did this. As Sowell points out in "A Conflict of Visions" a mere battle of Rights in a metaphysical sense will always have the right held by one overcome by the right held by many, yeilding an situation where property will always suffer. It is one of his areas where he criticizes doctrinaire libertarian thought as being inconsistant.
The author of this makes the same point about the conflict of Rights.
Property is the foundation of all civilized society and therefore metaphysical constructs hold no sway in overruling it. It is only modified by usages and settled changes over a long period of time--such as common law and statute law allowing rights to water access in certain situations and similar modifiers that have been settled for half a millenium. Prescription is rarely mentioned and is a obtuse issue. But it is just the foundation upon which Property rests.
Take such a murky concept and further subdivide it into public property and private property, and there is the second degree of murkiness -- murkiness to a murky power.
This is the absolute source of debate in the world and such poor definition cannot lead anywhere than continued chaos in law and in government. Civilizations rise and fall because of this, and always will.
You do one of the following:
A....Pay a price established by a willing seller.
B....If the Owner is not able to defend his ownership against all forces, you change the Government's basic function of defending his Ownership.
C....Come up with a Right you, and possibly many others, hold that Trumps his Right and in the battle of Rights, you steal his property.
In one of the most famous Federalist papers, Federalist 10, James Madison wrote that the first object of government was the protection of the diversity of the faculties of men, from which the rights of property originate. The right to acquire and protect property was considered to be one of the fundamental, inalienable natural rights of mankind, and it is recognized as such in most of the original state constitutions and nearly all of the subsequent state constitutions. Pennsylvania's Constitution of 1776 is fairly typical, recognizing "That all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."In other words, the Pursuit of Happiness issue is only murky in the Delaration...it wasn't murky to the founders. It was clearly a settled matter.
Which is the problem. So settled that it isn't mentioned explicitly in the federal Constitution, almost inexplicable considering the presence of the Bill of Rights. There has been an unending process of backfilling ever since, especially with defining public versus private property. The Mining Law of 1872 is one example.
The best was is to arrange your affairs to enter the market and buy property. Otherwise, you might become a politician and unethically take property using government's coercive powers. Last resort tactics -- not recommended -- involve taking property by force, fraud or theft.
And -- thinktwice -- thanks for posting this excellent opinion piece by Greenhut!
Originally, only land owners could vote. If only land owners control the government, property rights would likely be kept quite safe.
Originally, only land owners could vote. If only land owners control the government, property rights would likely be kept quite safe.
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