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Constitutional Property Rights

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  • Legalbear
    ... *Supreme Court Quote: In a 1795 Supreme Court case the Court declared*: No man would become a member of a community in which he could not enjoy the fruits
    Message 1 of 1 , May 23, 2006
      *Supreme Court Quote: In a 1795 Supreme Court case the Court declared*:
      "No man would become a member of a community in which he could not enjoy
      the fruits of his honest labor and industry. The preservation of
      property, then, is a primary object of the social compact . . . The
      legislature, therefore, had no authority to make an act divesting one
      citizen of his freehold and vesting it in another, without a just
      compensation . 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 to the
      letter and spirit of the Constitution." *Question: *How do later courts
      misread these very plain words?


      *James Madison, Property*

      29 Mar. 1792/Papers 14:266--68 /

      This term in its particular application means "that dominion which one
      man claims and exercises over the external things of the world, in
      exclusion of every other individual."

      In its larger and juster meaning, it embraces every thing to which a man
      may attach a value and have a right; and /which leaves to every one else
      the like advantage./

      In the former sense, a man's land, or merchandize, or money is called
      his property.

      In the latter sense, a man has a property in his opinions and the free
      communication of them.

      He has a property of peculiar value in his religious opinions, and in
      the profession and practice dictated by them.

      He has a property very dear to him in the safety and liberty of his person.

      He has an equal property in the free use of his faculties and free
      choice of the objects on which to employ them.

      In a word, as a man is said to have a right to his property, he may be
      equally said to have a property in his rights.

      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.

      Where there is an excess of liberty, the effect is the same, tho' from
      an opposite cause.

      Government is instituted to protect property of every sort; as well that
      which lies in the various rights of individuals, as that which the term
      particularly expresses. This being the end of government, that alone is
      a /just/ government, which /impartially/ secures to every man, whatever
      is his /own/.

      According to this standard of merit, the praise of affording a just
      securing to property, should be sparingly bestowed on a government
      which, however scrupulously guarding the possessions of individuals,
      does not protect them in the enjoyment and communication of their
      opinions, in which they have an equal, and in the estimation of some, a
      more valuable property.

      More sparingly should this praise be allowed to a government, where a
      man's religious rights are violated by penalties, or fettered by tests,
      or taxed by a hierarchy. Conscience is the most sacred of all property;
      other property depending in part on positive law, the exercise of that,
      being a natural and unalienable right. To guard a man's house as his
      castle, to pay public and enforce private debts with the most exact
      faith, can give no title to invade a man's conscience which is more
      sacred than his castle, or to withhold from it that debt of protection,
      for which the public faith is pledged, by the very nature and original
      conditions of the social pact.

      That is not a just government, nor is property secure under it, where
      the property which a man has in his personal safety and personal
      liberty, is violated by arbitrary seizures of one class of citizens for
      the service of the rest. A magistrate issuing his warrants to a press
      gang, would be in his proper functions in Turkey or Indostan, under
      appellations proverbial of the most compleat despotism.

      That is not a just government, nor is property secure under it, where
      arbitrary restrictions, exemptions, and monopolies deny to part of its
      citizens that free use of their faculties, and free choice of their
      occupations, which not only constitute their property in the general
      sense of the word; but are the means of acquiring property strictly so
      called. What must be the spirit of legislation where a manufacturer of
      linen cloth is forbidden to bury his own child in a linen shroud, in
      order to favour his neighbour who manufactures woolen cloth; where the
      manufacturer and wearer of woolen cloth are again forbidden the
      oeconomical use of buttons of that material, in favor of the
      manufacturer of buttons of other materials!

      A just security to property is not afforded by that government, under
      which unequal taxes oppress one species of property and reward another
      species: where arbitrary taxes invade the domestic sanctuaries of the
      rich, and excessive taxes grind the faces of the poor; where the
      keenness and competitions of want are deemed an insufficient spur to
      labor, and taxes are again applied, by an unfeeling policy, as another
      spur; in violation of that sacred property, which Heaven, in decreeing
      man to earn his bread by the sweat of his brow, kindly reserved to him,
      in the small repose that could be spared from the supply of his necessities.

      If there be a government then which prides itself in maintaining the
      inviolability of property; which provides that none shall be taken
      /directly/ even for public use without indemnification to the owner, and
      yet /directly/ violates the property which individuals have in their
      opinions, their religion, their persons, and their faculties; nay more,
      which /indirectly/ violates their property, in their actual possessions,
      in the labor that acquires their daily subsistence, and in the hallowed
      remnant of time which ought to relieve their fatigues and soothe their
      cares, the influence [inference?] will have been anticipated, that such
      a government is not a pattern for the United States.

      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.

      *The Founders' Constitution

      Volume 1, Chapter 16, Document 23

      The University of Chicago Press

      PHONE #s: 970-330-3883/720-203-5142 c.

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