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REQUIEM

Below are the two final essays to be posted on Allegiance and Duty Betrayed. The first one is written by a friend -- screen name 'Euro-American Scum' -- who, over the past four years, has been the most faithful essayist here. He has written about everything from his pilgrimage to Normandy in 2004 to take part in the 60th–year commemoration of the invasion, to his memories of his tour in Vietnam. His dedication to America’s founding principles ... and those who have sacrificed to preserve them over the past 200+ years ... is unequaled. Thank you, E-A-S. It has been a privilege to include your writing here, and it is a privilege to call you my friend.

The second essay is my own farewell. And with it I thank all of the many regular visitors, and those who may have only dropped in occasionally, for coming here. I hope you learned something. I hope a seed or two was planted. But, even if not, I thank you for stopping by ... 25 March, 2010

7/29/2006

An Inquiry into the Restraint of my Liberty

Do Property Rights Still Exist in North Carolina?
    "Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the restraint if unlawful."

      --Constitution of North Carolina, Article I, Sec. 21.

Without property rights, no other rights are possible. The brilliant men who forged the constitutional framework of the American system of government - being well acquainted with tyrannical forms of government - knew this fact well.
    Alexander Hamilton: "A power over a man's subsistence amounts to a power over his will. Property must be sacred or liberty cannot exist."

    James Madison: "Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions", and:

    "Government is instituted to protect property of every sort... This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."

    "Government is instituted no less for protection of the property than of the persons of individuals."

    John Adams: "[t]he moment that 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.

    Daniel Webster: "No other rights are safe where property is not safe."
Webster's idea is best reflected in an eighteenth century judicial opinion, wherein the Court noted that "the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of men... The preservation of property, then, is a primary object of the social compact." - Vanhorne's Lessee v. Dorrance, 2 U.S. 310 (1795).

As we know, early American common law descended directly from English common law. What did the English think of private property?
    Magna Carta - 1297: "No Freeman shall be taken, or imprisoned, or be disseised [deprived wrongfully of real property] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land."

    John Locke: "The great chief end therefore, of Mens uniting into commonwealths, and putting themselves under Government, is the Preservation of their Property." He also said,

    "Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience..." --2nd Treatise of Government, 1690

    William Blackstone: "The principal absolute rights which appertain to every Englishman [are] personal security, personal liberty, and private property."
From these quotations we can see that the right to own property is fundamental to Western civilization. But does that "right" mean nothing more than the possession of a piece of paper called a "deed", and the duty to pay taxes to the State every year? Of course not. The concept of a "right" pertains only to action - specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.

Thus, for every individual, a right is the moral sanction of a positive - of his freedom to act on his own judgment, for his own goals, by his own voluntary, un-coerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The very essence of "ownership", therefore, is a sanction to use one’s property at will without asking permission from anybody - not your neighbors, and not the State. The right to use one’s property is limited only by the equal rights of other property owners.
    "Private property gives the right to exclude others without the need for any justification. Indeed, it is the ability to act at will and without need for justification within some domain which is the essence of freedom, be it of speech or of property."

      -- Professor Richard Epstein, University of Chicago, Takings, 1985
We all know that the fifth and fourteenth amendments to the U.S. Constitution were intended to guarantee our right to own property:
    "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.
      --Amendment V

    ...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
      –Amendment XIV
The Constitution of North Carolina guarantees the right to own and use property as well.
    "We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
      -- Article I, Section 1:

"The fruits of one’s labor" are obviously one’s property, whether one is talking about the smaller things one buys each week with one’s paycheck or the bigger things like a car or a home or a piece of land. What does it mean to say we have any "rights" or "freedoms" at all, if we cannot peacefully enjoy that property which we buy with the fruits of our labors?

But the bureaucrats and legislators in Raleigh don’t see it that way. They have stood the historical relationship between the governed and their purported "public servants" on its head. It seems like they no longer feel the need to obtain the "consent of the governed" as both the North Carolina Constitution and the U.S. Constitutions require.

The bureaucrats and legislators in Raleigh have turned the concept of Riparian Rights on it’s head, too. Riparian Rights are the legal rights of owners of land bordering on a river or other body of water; also, law which pertains to use of the water for that land. Under North Carolina common law, a riparian proprietor owns that portion of the bed of the (not navigable) river which is adjoining his land to the central line of the stream. Furthermore, the riparian proprietor has the absolute right to use the water bordering his property for domestic uses such as drinking, bathing, and watering gardens and livestock for domestic use.

But rather than the power of the riparian proprietor extending out into the water as the law guarantees, the State of North Carolina now sees a "Riparian Buffer" extending the power of the State fifty feet up onto the privately owned dry land adjacent to the stream. In this "Riparian Buffer" the "owner" may not use his or her land. By fiat, the state has decreed that no "land-disturbing activity" shall be allowed within 50 feet of a stream, full time or seasonal spring, or even a drainage ditch. No tree or brush trimming, no planting, no garden paths, nothing."
    "Land-Disturbing Activity" means any use of the land by any person ...that results in a change in the natural cover or topography and that may cause or contribute to sedimentation."
This so-called "law" is now in effect in several Eastern NC Counties, and may well be forced on those of us in the mountains where it would effect almost every property owner. But much worse than just riparian law, our legislators have turned the very concept of "the law" itself upside down.

In the nineteenth century, "the law" had a precise meaning: A set of general rules of conduct toward others which applied equally to all and meant to prevent unjust conduct. The North Carolina Constitution is one set of such laws. Unfortunately, our legislators and bureaucrats no longer see themselves as constrained by the lawful limitations placed on them by the Constitution. In effect, they have become "lawless" because they now see "the law" as any rule or statute that they can get a majority to agree to, regardless of whether or not the power to pass that "law" was granted them by the Constitution. F.A. Hayek put it this way:
    The so-called legislature was no longer (as John Locke had thought is should be) confined to giving laws in the sense of general rules. Everything the "legislature" resolved came to be called "law", and it was no longer called legislature because it gave laws, but "laws" became the name for everything which emanated from the "legislature". The hallowed term "law" thus lost all its old meaning, and it became the name for the commands of what the fathers of constitutionalism would have called arbitrary government.
The Constitution of North Carolina Article II, Sec. 24 reads:
    The General Assembly shall not enact any local, private, or special act or resolution: (e) Relating to non-navigable streams.
...but clearly they have done so in passing H.B. 1160, The Clean Water Act of 1999, and making sections of it apply only to local areas. Furthermore, with their "Notwithstanding..." language, the legislature cavalierly waived all requirements of previous environmental laws designed to insure public accountability. Basically, the legislature gave the unelected Environmental Management Commission free reign to write whatever rules their friends in the Sierra Club wanted.

PART VII. AUTHORIZE TEMPORARY RULES TO PROTECT THE CAPE FEAR, CATAWBA, AND TAR-PAMLICO RIVER BASINS.
    Section 7.1. Notwithstanding G.S.150B-21.1(a)(2) and Section 8.6 of S.L.1997-458, the Environmental Management Commission may adopt temporary rules as provided in this section to protect water quality standards and uses as required to implement basinwide water quality management plans for the Cape Fear, Catawba, and Tar-Pamlico River Basins
The power of the legislature is further restricted by Article XIV, Sec. 3. Which directs the body to enact only "general laws uniformly applicable throughout the State" and forbids the legislature from making "special" laws which apply only to certain areas. But clearly they have done so by singling out the property owners in the Neuse, Tar-Pamlico, and Cape Fear watershed areas of the State for special restrictions on the use of their land and special and taxes to the Riparian Buffer Restoration Fund. It is clear that eventually the legislature will be forced to either rescind this unconstitutional "law" or to compound their mistake by putting it into effect for all property within the State...which was probably their intention in the first place.

The people of North Carolina want clean streams to look at and waterfalls to play in, but don’t want to pay for the privilege. And therein lies the temptation for many government dreamers who have great visions but limited resources. Why not simply regulate property in such a way as to practically take it without actually taking title? Government wins on all counts under this scenario: it uses the property how it wishes, and the poor owner still pays the taxes. And the "environmentally-conscious" legislators get re-elected. Chief Justice Rehnquist wrote in Armstrong v. U.S., the Fifth Amendment guarantee...
    [is] designed to bar Government from forcing some people alone to bear the burdens which, in all fairness and justice, should be borne by the public as a whole"; Ultimately, while localities may and should regulate property, they cannot and should not do so in way that unfairly extorts from a few individuals the cost of a public good.
If one takes a moment to consider which countries around the world have cleaner air, streams, and rivers, it becomes obvious that the cleanest countries are those with stronger property rights. The countries with the despoiled and polluted landscapes are the ones with lesser or nonexistent property rights. The reason is obvious: Private owners take better care of their property than a far-away bureaucrat could ever do.
    "Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
      -- C.S. Lewis
Seventy years ago there existed a government which held the following view of private property:
    "Let them then own land or factories as much as they please. The decisive factor is that the State...is supreme over them, regardless whether they are owners or workers...
      --Adolph Hitler
Unfortunately, the government of North Carolina seems to be bent on adopting the same concept of property ownership as was held by the National Socialists in Germany. We "subjects" in Western North Carolina can "own land" all we want, as long as we use it only in ways approved by the Water Quality Board, the Sedimentation Control Commission, the Department of Fish and Wildlife, the Environmental Protection Agency, and all the other various bureaus in Raleigh and Washington, D.C.

The North Carolina Constitution, Article 1, Sec. 35 admonishes us to frequently return to fundamental principals in order to preserve the blessings of liberty, so let’s do that. History has amply demonstrated the results of what the National Socialists in Germany thought of property rights and of liberty. But what did the founders, jurists, and philosophers from the early days of our Country think about those two concepts?

Virginia Bill Of Rights, 1776:
    "SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
Thomas Jefferson: "Nothing is ours, which another may deprive us of."

Samuel Adams: "The Natural Rights of the colonists are these: first, a right to life; second, to liberty; third to property; together with the right to support and defend them in the best manner they can."

    Afterword

    I wrote this several years ago in response to a government land grab here in North Carolina. I discovered while doing the research that many other states are affected as well. The EPA is the prime mover behind the "Riparian Buffer" effort, and supplies most of the funding to the individual states.

    Several court cases in the intervening years may have changed some things, but the fundamental desire of government to take over you property remains the same.

--by John Cooper
(philosopher@engineered-home.com)

(contributing team member of Allegiance and Duty Betrayed)

7 comments:

trustbutverify said...

This is a good example of government thinking it owns the air we breathe, and it will be glad to let us breathe it if we just pay them for the privilege.

Good job of fact finding and compiling.

joanie said...

Everyone whose words you quote in this column is well worthy of quoting! They all believed in a handful (but a powerful handful) of inalienable rights, and they all believed that the right to private property was high on the list of those human rights with which government must not have the ability to interfere.

Your Locke quote, especially, laid the foundation for our early (and justified) veneration of property rights. He often wrote about the sanctity of man’s right to life, liberty and property.

I, for one, believe that our Founders’ (albeit small) divergence from Locke’s wording in his magnificent treatises on liberty was a dilution rather than an improvement.

Rather than referring to the pursuit of happiness, I wish the Founders had acceded to the ‘right to property’ wording instead, as it appears in several other colonial documents, following Locke's example. Under the rights established by the First Continental Congress: Declaration of Colonial Rights (1774), the first ‘right’ established for the English Colonies in North America is that they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever a right to dispose of either without their consent. And Boston's 1772 Rights of the Colonists echoed the same: Among the natural rights of the colonists are these: First, a right to life; secondly to liberty; thirdly to property.

North Carolina’s overstepping of its prescribed bounds is being reflected all over the country. I daresay the legislatures of every state in the country have floated trial balloons that involved overstepping their designated powers, and declaring some aspect of private property to be under their domain. Whether they succeed in making those trial balloons fly almost always depends on the public outrage they cause, or the power and influence of judges they have amassed in their corner.

This is a great piece of research, molded into a powerful, logical argument for the preservation of individual property rights. Well done!

~ joanie

John Cooper said...

Ken McKim is the Republican candidate for State Senate from the 50th (my) district. He wrote this, which is one of the reasons I voted for him in the primary election:

Riparian Seizure (Buffer Zones)

"The citizens of North Carolina face the same predicament, unable to use their own land because of government seizure through riparian buffer zones. The proponents of the buffer zones show no signs of stopping, and without resistance from the people, seizures will continue. Groups like Environmental Defense are not even close to their ultimate goal of 328-foot buffers."

"But today’s environmentalists have much to learn from their presumed forefather. Biodiversity is not a quantifiable goal, and is constantly changing, but personal property rights are sacred. Farmers and homeowners in North Carolina have the right to use their land as they see fit. Two centuries ago, government seizures without just compensation were offensive even to the quintessential naturalist himself. And they are offensive today to an informed North Carolina citizenry."

lori_gmeiner said...

In the nineteenth century, "the law" had a precise meaning: A set of general rules of conduct toward others which applied equally to all and meant to prevent unjust conduct. The North Carolina Constitution is one set of such laws. Unfortunately, our legislators and bureaucrats no longer see themselves as constrained by the lawful limitations placed on them by the Constitution. In effect, they have become "lawless" because they now see "the law" as any rule or statute that they can get a majority to agree to, regardless of whether or not the power to pass that "law" was granted them by the Constitution.

That's our country's biggest domestic problem in a nutshell.

Your quotes and references are great, and you pulled them all together really well.

Nicely done.

Anonymous said...

Well reasoned and well said.

robmaroni said...

There's not a one of them in Washington that I'd give a plug nickel for. Or in a lot of the state legislatures either.

Our founders must be rolling in their graves---and the hundreds of thousands who have died to defend the TYRANNY we now live under? What a waste of brave lives.

All_good_men said...

I have only "one word" to say...the frog is almost cooked.