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.”
Notice 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, 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 1795 believed that IF the federal government could take land from private land owners outside 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…It 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...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.”
When government makes restrictions, regulations, exemptions for the property you call your own, that is a taking of that property on multiple levels. They courts may argue that if the government is “only” regulating a “small portion” of the property that this taking is justified for the “greater good.” Not only do the creators of America disagree, but all of Liberty disavows such heresy. That is socialism and is incompatible with the actions of a Constitutional Republic and people who ought to be dedicated to Liberty.
The overriding principle for all government must be, as Madison said, “This being the end of government, that alone is a JUST government, which IMPARTIALLY secures to every man, whatever is his OWN.”
Government must protect the rights of all people to act freely upon their own property, “impartially”- whether those in government like that person or their property.
The very definition of property relies upon the owner being free to use that property within his exclusive dominion. When a person does not have exclusive dominion over their property they cannot rightly claim ownership. Unfortunately, that is the condition of the majority of people in America. We are not property owners, we merely lease our property through taxation and permission from those in government; we are simply indentured servants to the government plantation owners.
The truth of this history and logic ought to ignite and inspire all Americans to change the reality of their governments, because the change is within our authority and within our power. We must begin to educate ourselves and others on the ERRANT operations of our governments and go about making real and powerful efforts to effectuate change… beginning from the bottom up.
If we refuse city councils, county commissions, and State taking of our property, we will eventually become educated and united enough to limit federal power as well. If we continue to make excuses or blindly throw our efforts into a “federal first” mentality, nothing will ever change and the only thing our children will inherit is oppression.
KrisAnne Hall is a constitutional attorney and former prosecutor. Read full article at krisannehall.com.
The Language of Liberty series is an outreach project of Center for Self Governance to educate citizens in the principles of liberty. The views expressed by authors are their own and may not reflect the views of CSG.