- "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.
- 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."
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."
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
- "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
- –Amendment XIV
- "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:
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."
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 General Assembly shall not enact any local, private, or special act or resolution: (e) Relating to non-navigable streams.
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 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.
- "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
- "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
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."
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."
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.
(contributing team member of Allegiance and Duty Betrayed)