Rise Up and Take a Stand


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Without Just Compensation

One of the purposes of the Fifth Amendment is to protect private property from usurpation by government, declaring “nor shall private property be taken for public use, without just compensation.” Under the law of eminent domain, the state can compel a property owner to sell his property to the government, but is required to justly compensate him for the loss. However, there are other ways in which the state can usurp private property rights without actually taking title to the property. When the state imposes regulations that deprive a citizen of the rights associated with private ownership of some or all of his property, it’s known as a “regulatory taking.”

In 1992, the U.S. Supreme Court found (Lucas v. South Carolina Coastal Council) that the state is only required to provide just compensation under the Fifth Amendment for regulatory takings when the regulations deprive the owner of “all economically beneficial uses of the property.” That means the state can legally deprive a property owner of over 90% of the value of his property without owing any compensation. The “categorical rule,” as this has come to be known, is a boon for any state desiring to usurp control of private land without the burden of having to compensate the lawful owners.

Rarely can it be demonstrably proven that a property has been rendered devoid of all economic value. Nevertheless, in those rare cases where that actually can be proven, the U.S. Supreme Court has granted the states yet another loophole to exempt them from having to compensate property owners for their loss. The Court ruled that, even if the regulations imposed deprive the property owner of all economically beneficial use of the property, the state is not required to provide compensation if the regulatory restrictions can be justified by “background principles of nuisance or property law.”

Under common law, nuisance is understood to be an activity or condition that unreasonably interferes with the right of other property owners to the “quiet enjoyment” of their property, or interferes with public health or safety. However, the reference to “background principles of property law” is much more ambiguous, as these background principles vary from state to state. Each state defines its own property law, and the “background principles” are often implicit assumptions that have never been explicitly spelled out until they’re claimed by the state, challenged, and settled in court. Then they become established law.

One of these background principles is the “public trust,” which we discussed at length in Private Property vs. Public Trust. Between the categorical rule and the blanket exemption for background principles of state property law, the Supreme Court has begotten a brave new form of eminent domain that enables the states to completely bypass the just compensation protection set forth by our founding fathers in the Fifth Amendment. Some states, like Oregon, are taking full advantage of that, quietly and methodically working on a number of different fronts to lay a strategic foundation of “background principles” that expand their legal bases for usurping control of private land.

What sort of long-term agenda might a state have for establishing a legal framework for unprecedented regulatory takings without compensation? The answer may lie in the influence of the rich and powerful environmental lobbies, whose agenda is to prevent as much development, timber harvesting, mining, or any exploitation of natural resources as they possibly can. Some people think that’s a good thing. But, apparently, not enough to achieve the goals of the environmental lobby without establishing government control of any resource in which they have an environmental interest. Some people are OK with that. After all, the government must know what’s best for the people, and will always act in their best interest. Therefore, it stands to reason that the government should own all natural resources (including land, air, and water) and/or control how they’re used.

The concept of government versus private control is at the core of the ideological conflict between Marxism and capitalism. Private property is a fundamentally capitalistic concept, and that is what is under attack. So, the next time you hear about some new land grab by the state, and you think it’s somebody else’s issue because it doesn’t directly affect you, consider that there’s more at stake in this game than just land.


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Private Property vs. Public Trust

There are two types of property ownership recognized by law, jus privatum and jus publicum. Everybody’s familiar with jus privatum, also known as fee simple ownership. It means that you have title to a parcel of property, which confers upon you certain rights with respect to that property. Historically, private property rights have been defined as:

  • The right to control the use of your property.
  • The right to the benefits that accrue from your property.
  • The right to sell or transfer your property.
  • The right to exclude others from access to your property.

On the other hand, few people are familiar with jus publicum, also known as the public trust. Jus publicum ownership is always vested in the state, never in a private party. Unlike jus privatum, jus publicum is not transferrable. Furthermore, in any case where jus publicum can be established, it overrides jus privatum. Therein lies the rub. That enables the state to use jus publicum to abrogate your private property rights, without your consent and without compensation, in any situation where jus publicum can be established.

The idea of public trust goes back to English Common Law.

“Both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the crown of England, are in the King. Such waters and the lands which they cover either at all times or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King’s subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the representative of the nation and for the public benefit.”
U.S. Supreme Court, Shively v. Bowlby (1894)

After the American Revolution, the thirteen former colonies that made up the newly formed Union assumed the title and rights of the King to all navigable rivers within their respective territories. The jus publicum was held to be non-transferrable, acting as a permanent public easement on the jus privatum title for purposes of navigation, commerce, and fishing, as originally designated under English Common Law. At a time when rivers were the most practical means of transporting people and goods over long distances, the free use of navigable waterways was considered essential for the development of local and interstate economies.

As other states were admitted to the Union, they were guaranteed equal footing with the original thirteen, and so acquired the same title and rights to the navigable rivers within their jurisdiction.

Said rivers and waterways and all navigable waters of the said state shall be common highways and forever free as well to the inhabitants of said state as to all citizens of the United States without tax, duty, import or toll thereafter.
Act for Admission of Oregon into the United States (1859)

In accordance with the original intent of the law, jus publicum was traditionally defined as the specific public rights associated with using rivers as “highways of navigation and commerce” and for purposes of fishing. While a highway is dedicated to public use, no sane person would claim the right to sit down in the middle of a highway and have a picnic. That is not one of the designated purposes of a highway. Likewise, it never occurred to anyone to claim that recreation would be an applicable purpose for which to invoke jus publicum. — Up until 25 years ago, that is, at which time the state of California came up with the notion that the definition of jus publicum could be extended to include whatever purposes the state might find convenient.

The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. … [T]he traditional triad of uses – navigation, commerce and fishing – did not limit the public interest in the trust res. … “In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”
California Supreme Court, National Audubon Society v. Superior Court of Alpine County (1983)

In that case, the California Supreme Court extended jus publicum to include non-navigable tributaries of Mono Lake. The court ruled that the state could prevent the Department of Water and Power for the City of Los Angeles from using its legally owned water rights because the usage interfered with the supply of water to Mono Lake. The water rights were deemed to be a public trust for “environmental and human considerations” having nothing to do with the traditional jus publicum rights relating to navigation, commerce, or fishing. The court rejected a regulatory takings claim because the land was held to be exempt from fee simple title on the grounds that it was a public trust and, therefore, no compensation was due to the plaintiff for the loss of their water rights.

That ruling opened the door for other states to expand the scope of jus publicum beyond its original intent, in whatever ways captured their imagination.

The nature of the ownership includes two components: fee simple title (the jus privatum) and dominion as the public’s trustee over the natural resource for public trust uses such as navigation, commerce, fisheries and recreation (the jus publicum).
Oregon Department of State Lands, Rogue River Navigability Report (2008 )

Oregon, quietly and without fanfare, slipped “and recreation” into the list of rights held in trust for the public under jus publicum. Nobody blinked so, by precedent, the “right” to recreation is now part of the legal definition of the public trust in the state of Oregon. What difference does that make? If you own riverfront property, the traditional definition of jus publicum guaranteed passage for boats on the river without your explicit consent. The new and improved definition declares that anybody who wants to may have picnics and parties in your backyard (at least the part of it that extends below the high water mark). In the course of carefree recreation, people often make noise, leave litter, and sometimes do damage to property. But there’s nothing you can do about that, because the state of Oregon declared they have as much right to use your property for recreation as you do. You can ask them to pick up their litter, but you can’t enforce it. And, if they damage your property, you can try to sue them, if you can find out who they are… But you have no legal right to keep them out, or to restrict what they may do while they’re enjoying your property.

Oregon was not the first state to include recreation in the definition of jus publicum. In 1999 (National Association of Home Builders v. New Jersey Dept. of Environmental Protection), riverfront property owners were compelled to allow a public pathway along the river, through their property, with no compensation for takings, because the right to access the river for recreational purposes was ruled a public trust. Because the path is on their property, the “owners” have the responsibility of maintaining it (just like a public sidewalk) and, presumably, they also carry the liability if anyone should get hurt while traversing it.

In 2002 (Esplanade Properties, LLC v. City of Seattle), the Ninth Circuit Court used the state of Washington’s expanded definition of jus publicum to prohibit residential development of privately owned shoreline properties. Because the recreational use of the shoreline is considered a public trust, no compensation was awarded to the fee simple “owners” of the property.

According to The Idea of Property: Custom and Public Trust, in 2001 (R. W. Docks & Slips v. Wisconsin), the Wisconsin Supreme Court “expanded the public trust doctrine to include recreation and preservation of scenic beauty.” Subsequently, Florida and other states “expansively interpreted” the public trust doctrine to include both recreation and scenic beauty, as well. When the state can rule that the public’s “right” to scenic beauty supercedes the private property rights of individuals, one has to wonder if there are any limits to the ever-expanding powers of state government to abrogate our property rights for whatever arbitrary purpose they may declare.

When the state declares your property, or some part of your property, to be a public trust, it can legally deprive you of the traditional rights associated with private property ownership. In the cases cited above, property owners were deprived of the right to control the use of their property, the right to economic benefits accruing from their property, and the right to exclude others from access to their property. Yet, as long as the justification is based on jus publicum (or expanded definitions thereof), the state is not required to pay any compensation for takings under the laws of eminent domain. Because jus publicum is non-transferrable, the state will claim the property rights in question never did actually belong to you (though you will continue to owe property taxes on the property).


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What is Conservatism?

To me, conservatism is about believing in the principles on which this country was founded. Those principles are grounded, not in the unlimited powers of government to regulate every aspect of our lives, but in our inalienable rights to life, liberty, and the pursuit of happiness. Everyone understands what’s meant by life and liberty, but the pursuit of happiness clause is not always clear to people. The government doesn’t guarantee anybody’s happiness. But what it does guarantee is that each of us has the right to pursue whatever happiness may mean to us, as individuals, in whatever way we see fit, as long as it doesn’t infringe on the rights of anybody else. That’s a powerful concept.

What makes this country unique among all nations is the fact that our founding fathers believed so strongly in individualism that they placed the rights of the individual above the rights of the collective society, or the “common good.” From its inception, this country was founded on the precepts of individual freedom and individual responsibility. As an American, you have the freedom to live your life however you choose to live it. But the corollary of that freedom is that you also have to take responsibility for your life, and the choices you make, and the consequences of those choices.

It’s not the role of the government to protect you from yourself, or from your own bad choices, poor judgment, or ignorance. That’s up to you. It’s also not up to the government to provide you with basic necessities, like food, shelter, medical care, employment, recreation, or anything else, save the protection of your individual rights. All those are your responsibility to provide for yourself and your dependents. But, by the same token, neither does the government have the right to take away what is yours to provide those things for others.

The concept of private property is fundamental to the realization of individual freedom. What you earn by the fruits of your labor, your mind, your creativity, talents, and the skills you’ve worked to develop, belongs to you and you alone. You may choose to share what’s yours with whomever you want, but that, too, is up to you. It’s not up to the government to take what you earn and redistribute it to those who can’t, or won’t, or don’t earn.

Our founding fathers recognized that, to maximize individual freedom, you have to limit the powers of government. The only truly legitimate role of the government is to protect your rights from being infringed upon by others. Quite simply, the purpose of government is to protect me from you, and you from me, and both of us from a common enemy. Locally, that means law enforcement and criminal justice. Nationally, that means a strong military. I support both.

I’m not against all taxation. I recognize that you don’t get something for nothing. The protection of my rights as a citizen, and our national sovereignty, is worth a lot to me. And I’m willing to pay for that. But I’m not willing to pay for everything else anybody wants that they can’t afford to pay for themselves. If you want something of value, you have to provide value in return. Just because you can’t afford something, doesn’t give you the right to take it out of my pocket. Nobody owes you anything, except what you earn.

The other fundamental building block of a free society is the free market. Some people confuse the phrase “free market” with “big business.” Those two concepts are orthogonal. A free market simply means that every transaction is entered into by the free will of the participants, with no coercion. A free market transaction is always win-win because, if either party doesn’t believe he’s getting more value than what he’s exchanging for it, he can walk away from the transaction. When the government imposes subsidies, tariffs, price controls, quotas, or other regulatory constraints upon the free market, it only serves to circumvent the free will of the people to choose how best to spend the money we earn, under the premise that the government knows what’s best for us better than we do.

The basic building blocks of freedom are free will, free markets, private property, and limited government. And that’s what conservatism in America is about.


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Which America Do You Believe In?

Conservatives believe in smaller government, more personal responsibility, an individual’s right to self-determination, and the inviolability of private property.

Liberals believe in bigger government, government assuming responsibility for the welfare of the people, and the “equitable” redistribution of private property  (e.g., higher taxes, social welfare programs, land use regulations).

Conservatives see Americans as strong enough, resourceful enough, and intelligent enough to forge their own destinies, viewing hardships as challenges and taking pride in overcoming them.

Liberals see Americans as hapless children who can’t be expected to take responsibility for their own welfare, or that of their families, who must be provided for and sheltered from hardship and privation.

Conservatives believe Americans are generous enough to give a hand up to those who are truly in need, of their own volition, out of a spirit of genuine altruism.

Liberals believe Americans are greedy and uncaring, and that the government must extract money from those who have it to bestow upon those who need to be preserved from hardship and the struggle for existence.

Conservatives believe the fundamental role of the government is to protect the citizens from each other, from external enemies, and from abuse of power by the government itself.

Liberals believe it’s the role of government to protect the people from themselves, and from their own bad judgement.

Conservatives believe each individual is responsible enough to make their own choices and live their own lives with minimal government intervention.

Liberals believe Daddy knows best.


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