BY JOHN W. WHITEHEAD, THE RUTHERFORD INSTITUTE |
“No power on earth has a right to take our property from us without our consent.” — John Jay, first Chief Justice of the United States
We have no real property rights.
Think about it.
That house you live in, the car you drive, the small (or not so small) acreage of land that has been passed down through your family or that you scrimped and saved to acquire, whatever money you manage to keep in your bank account after the government and its cronies have taken their first and second and third cut…none of it is safe from the government’s greedy grasp.
At no point do you ever have any real ownership in anything other than the clothes on your back.
Everything else can be seized by the government under one pretext or another (civil asset forfeiture, unpaid taxes, eminent domain, public interest, etc.).
The American Dream has been reduced to a lease arrangement in which we are granted the privilege of endlessly paying out the nose for assets that are only ours so long as it suits the government’s purposes.
And when it doesn’t suit the government’s purposes? Watch out.
This is not a government that respects the rights of its citizenry or the law. Rather, this is a government that sells its citizens to the highest bidder and speaks to them in a language of force.
Under such a fascist regime, the Fifth Amendment to the U.S. Constitution, which 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,” has become yet another broken shield, incapable of rendering any protection against corporate greed while allowing the government to justify all manner of “takings” in the name of the public good.
As journalist Eric Williamson notes, “From controversial projects such as President Donald Trump’s border wall and the gas pipelines, to more mundane works such as road expansion, just about any project deemed in the public interest can mean taking your property is fair game.”
Practically anything goes now.
It’s been 13 years since the U.S. Supreme Court took up the case of Kelo v. City of New London, which expanded the government’s limited power to acquire private lands in order to build a public structure like a school or highway for “public use” and allowed it to make seizures for a “public purpose,” which in the government’s eyes can mean anything as long as it amounts to higher tax revenue.
In Kelo, the City of New London, Conn., wanted to condemn private homes as “blighted” in order to tear them down and allow a developer to build higher-priced homes, a resort hotel, a conference center and retail complexes to complement a new Pfizer pharmaceutical plant in the area. Ironically, the developers in New London later backed out of the deal after the homes were seized and bulldozed, leaving the once quaint neighborhood a wasteland.
Nevertheless, a shortsighted Supreme Court gave city officials the go-ahead, ruling 5-4 that a city government—aligned with large corporate interests—could use the power of eminent domain to seize an entire neighborhood for development purposes, entire neighborhoods have been seized and bulldozed to make way for shopping malls, sports complexes and corporate offices.
“The specter of condemnation hangs over all property,” warned Justice Sandra Day O’Connor in a stinging dissent. “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Unfortunately, nothing has prevented the government from bulldozing its way through the Fifth Amendment in an effort to take from the middle and lower classes and fatten the coffers of the corporate elite.
In the wake of Kelo, at least 16 places of worship (which pay no taxes) were taken for private uses (which will generate tax dollars). Other attempted takings include the transfer of three family-owned seafood businesses to a larger private marina in Texas; the transfer of farmland to a shopping center anchored by a Lowe’s in Illinois; developing 233 low-income and elderly families’ properties into a senior community where townhouses cost more than $350,000 in New Jersey; and developing middle-income, single-family homes on the waterfront into more expensive condominiums in New Jersey.
Even Donald Trump has taken advantage of eminent domain, in one instance attempting to take an elderly woman’s house to make way for a limousine parking lot.
As an investigative report by the Institute for Justice notes, over the course of five years, local governments used eminent domain to lay claim to more than 10,000 homes, businesses, churches and private land for private business development, including condemning a family’s home so that the manager of a planned new golf course could live in it; evicting four elderly siblings from their home of 60 years for a private industrial park; and removing a woman in her 80s from her home of 55 years supposedly to expand a sewer plant, only to turn around and give her home to an auto dealership.
Fast forward to the present day, and you’ve got the government’s pipeline projects as a prime example of eminent domain being employed for corporate gain.
All across the country, power companies have been given the green light to build massive gas and oil pipelines that crisscross the country, cutting through private and public lands, as well as unspoiled wilderness.
“Yet despite oft-repeated claims by politicians and oil executives about the danger of relying on foreign oil, this U.S. petroleum renaissance never was designed to make America energy self-sufficient,” points out journalist Sandy Tolan. “A growing amount of that oil will end up in China, Japan, the Netherlands, even Venezuela.”
So much for the public use, huh?
These pipeline projects which are getting underway in a dozen states have stirred up a hornet’s nest of protests, most notably in Standing Rock, North Dakota, where activists attempting to block the completion of Dakota Access Pipeline were subjected to militarized police, riot and camouflage gear, armored vehicles, mass arrests, pepper spray, tear gas, drones, less-than-lethal weapons unleashed with deadly force, rubber bullets, water cannons, concussion grenades, arrests of journalists, intimidation tactics, and brute force.
Not all of the protests that have arisen in response to these pipeline projects hinge on environmental concerns, which are significant in and of themselves in light of water and ground contamination due to leaks and spills. Some of the protesters are landowners, simple farmers and homeowners who merely want the government and its corporate partners-in-crime to keep their grubby paws off their personal property.
In Virginia, activists have taken to tree sitting—living for weeks on end in platforms suspended above the ground in trees—as a form of protest over the devastation that is being wrought by these pipelines.
These acts of civil disobedience come at a costly price.
Pipeline and forestry officials have been working hard to make life as difficult as possible for the protesters, allegedly blocking their access to food and water and medical supplies, shining floodlights into the trees at all hours of the night, creating ground disturbances to dislodge their nests, and urging the courts to levy heavy fines for each day that the work to clear the forests for the pipeline is delayed.
Here’s what one resident of Roanoke, Va., wrote to me about the manner in which the Mountain Valley Pipeline is being inflicted on his community:
Our small community has been invaded by private security and a fully militarized local police department. Some families up here have land grants from the King, predating the formation of the Commonwealth. Mountain Valley Pipeline has begun cutting trees and has brought in private military contractors similar to what was used in North Dakota. MVP is only offering to pay pennies on the dollar. They are basically using the power of government to steal this land for private profit. What has ensued was the county positioning a mobile command center right across from my restaurant, and scores of police in full tactical dress being deployed. They wasted no time in hooking up with the MVP private security and a long list of offenses then began against the residents and land owners of Bent Mountain, who now find themselves subject to arrest for walking in their own driveway, taking pictures of the pipeline companies ever-changing survey lines and path of destruction, or in more than one case, for confronting MASKED ARMED MEN ON THEIR PROPERTY IN THE DEAD OF NIGHT. It is AMAZING that nobody has been shot yet! One of my neighbors was accosted on his own back porch by police for photographing the MVP surveyors continually moving the corridor of their easement. I have even had armed private security trespassing on my property miles away in neighboring Floyd County. I am all for infrastructure. However, I am not for the taking of people’s private land for profit, using the force and power of government, far outside of the bounds of the Constitution.
It takes a lot of gall to trespass onto someone’s private property, tear up their land, cut down their trees, pollute their air and water, prevent them from moving freely on their own property, threaten them with fines and arrests for challenging the intrusion, and then force them to pay (by way of taxes) to retain ownership of the property or sell it cheaply or at a loss so it can be torn down and used for some purpose that the government deems more beneficial to its bottom line.
That’s how little respect the government has for our rights.
It used to be that you could post a “No Trespassing” sign on your property to send the message that no one could venture onto your private property without your permission. As the Tennessee Supreme Court recognized in State v. Christensen, “a homeowner who posts a ‘No Trespassing’ sign is simply making explicit what the law already recognizes: that persons entering onto another person’s land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass.”
Unfortunately, American taxpayers have become trespassers on their own property thanks to the government’s ongoing land grabs and utter disregard for property rights.
So much for that whole pipedream about one’s home being one’s castle.
When it comes right down to it, the right to property is the first—and last—right, and perhaps the most inherent. The undermining and dissolution of this critical right may well prove to be one of the few things to rouse the American people to action.
As polls show, Americans have been willing to accept limitations on their rights to free speech, privacy and due process, as well as other important freedoms, in exchange for the phantom promise of security.
Yet whether they live in a modest two-bedroom walkup in the Bronx or a mansion in Bel Air, Americans have not been quite as willing to barter away their right to property. In this way, we are not so far removed from the revolutionary spirit that saw a ragtag assortment of colonists standing up to the military might of Great Britain.
The signing of the Declaration of Independence marked a new beginning for our nation. It signaled a shift in the balance of power from one in which the people served an elite ruling class to one in which government was instituted to serve the people. The government’s role would not be to create or define the people’s inherent rights but rather to guarantee their protection.
As the Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The Declaration, which embodied all the passion, outrage and noble ideals of the day, could easily have ended there. But the Founders understood that in order for the newly born nation to survive, it would need more than revolutionary sentiment. It would require a government that existed to serve the people, not itself, and a contract to guarantee basic liberties and bind the union together.
Thus was the U.S. Constitution born in the summer of 1787. It sprang forth from the experiences of a revolutionary generation, still wary of the strong arm of government. And from that wariness came the Bill of Rights.
The first ten amendments to our Constitution are intended as a blueprint to keep the government in its place, off our backs and away from our property.
For early Americans, the right to own property was fundamental to all other rights.
Mind you, the term “property” is much more fundamental and personal than just with land ownership. It refers to a kind of sovereignty over one’s life and possessions—especially one’s money.
Again, the Fifth Amendment to the United States Constitution states 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.”
Property is grouped in the same category as life and liberty in the Fifth Amendment because it is difficult to enjoy life and liberty without the stability, security and assurances that property provides. Private property, at a minimum, checks governmental power for it provides the citizen a right of space where even government agents cannot intrude without proper authority.
At its core, the American dream is about gaining sovereignty over one’s life and property. Without this sovereignty—this unshakeable guarantee of ownership and dominion, even over one’s own life—there can be no true liberty or freedom.
This most sacred of rights is under siege.
More than 200 years after early Americans went to war over their right to life, liberty and property, “we the people” have been reduced to little more than serfs in bondage, indentured servants, and sharecroppers.
If the government can tell you what you can and cannot do within the privacy of your home, whether it relates to what you eat, what you smoke or whom you love, you’re not the King or Queen in your little castle.
If government officials can fine and arrest you for growing vegetables in your front yard, installing solar panels on your roof, and raising chickens in your backyard, you no longer have any property interests in your home.
If school officials can punish your children for what they do or say while at home or in your care, your children are not your own—they are the property of the state.
If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government.
This is what a world without true property rights looks like, where the lines between private and public property have been so blurred that private property is reduced to little more than something the government can use to control, manipulate and harass you to suit its own purposes, and you the homeowner and citizen have been reduced to little more than a tenant in bondage to an inflexible landlord.
In other words, we’re slaves.
If you have no choice, no voice, and no real options when it comes to the government’s claims on your property and your money, you’re not free.
You’re not free if the government can seize your home and your car (which you’ve bought and paid for) over nonpayment of taxes.
You’re not free if government agents can freeze and seize your bank accounts and other valuables if they merely “suspect” wrongdoing.
And you’re certainly not free if the IRS gets the first cut of your salary to pay for government programs over which you have no say.
After all, a government that doesn’t respect the rights of its citizens will have even less regard for their property, be it land, money or personhood.
So where does that leave us?
Battling for our lives, liberties and property.
Indeed, as I make clear in my book Battlefield America: The War on the American People, the battle to protect our private property has become the final constitutional frontier, the last holdout against our freedoms being usurped.
Questions about who has ultimate control over our money, how much of it can be claimed by government and how it gets spent go to the heart of the battle over property rights.
Remember, governments generate no wealth on their own. Any resources that they have at their disposal have been appropriated from the original producers of that wealth, the citizens.
This fundamental truth has largely been downplayed over the years, because the government doesn’t want us to remember that it exists to serve at our pleasure and for our common good.
Yet any government that ceases to serve this function risks being declared illegitimate.
It happened once before.
It can happen again.
All it takes is the right spark to start a revolution.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at firstname.lastname@example.org.
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