Does Private Property Needs To Be Defined???
June 29th, 2005 by 
Kevin
Craig Westover, as usual, does an excellent job of explaining his views on the eminent domain issue that has been sweeping….well, the blogosphere at least.
Now I can see his views and in a sense I agree with him. But I think I simply look at it a little different, perhaps in a more idealistic manner.
Yes it’s true this isn’t the end, laws can be passed at a state level to defend private property rights and restrict how far eminent domain is allowed to go. And certainly considering recent events Minnesota should pass laws defining (and hopefully heavily restricting) the use of eminent domain.
However, the question that isn’t answer is “should that be necessary”?? Certainly aren’t some rights self-evident?? And among these unalienable rights would private property not be included?
Certainly we are all familiar with the Declaration of Independence at it’s famous phrase:
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.
This is as it was written by Thomas Jefferson. It is also well known that Thomas Jefferson was heavily influenced by the ideas and writing of John Locke. In fact both Thomas Jefferson and Ben Franklin were known to be fans of Locke’s writings, many of which concerned the right to possess property.
In addition, Thomas Jefferson used Virginia’s Declaration of Rights as a basis for writing the Declaration of Independence. And in fact Section 1 of that Declaration of Rights states:
“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.”
Considering these it can be fairly safely assumed that private property was among the many rights that are considered to be self-evident.
And as such, should it really be necessary to create laws to secure such rights?
Perhaps in this age we do and I will agree with Fishsticks on that one. But should we really have to?? I say no…and I think that’s why everyone is getting flustered about this.
And as long as I’m mentioning Craig’s writing, it is worth reading another post he has today that lists more fallout from the Kelo decision.
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June 30th, 2005 at 1:49 pm
It’s hard to throw Thomas Jefferson in the court’s face when he also (along with the other founding fathers) put eminent domain into the Constitution. He may have been a libertarian, but he also explicitly approved of the right for government to take private property. All rights not enumerated go to the people or the states, and this right was specifically reserved for the Feds by these same people. And while the Dec of Ind isn’t a legally binding document, the Constitution is.
Of course, governmental times were different back then and presumably takings weren’t so worrisome.
It’s too bad most conservatives have painted themselves into the “strict constructionism” corner of constitutional law, else you could argue that new challenges call for new interpretation of old laws
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June 30th, 2005 at 2:47 pm
Actually taking the Constitution in it’s literal form doesn’t cause a problem as you indicate it may.
It’s the living document viewpoint that causes these problems.
The Bill of Rights specifies “public use”. A new condo certainly is no public use…it may be public good, or public purpose, but it’s not public use.
In the Founders days, by “public use” I’m sure they meant a damn or a bridge or a well. In today’s terms a highway would be acceptable.
Certainly not private development.
And yes while they put eminent domain in the Bill of Rights, they put restrictions upon it. They allowed for the flexibility but put a check against it.
The latest SCOTUS ruling removed that check.