live_tv
Livestream Starting Soon
00
Hours
:
00
Minutes
:
00
Seconds
Up next in 10
Jon Roland at Austin Constitution Meetup, 2013/08/20, presents evidence and argument for the legal theory of "eminent domain" and why it can only properly be used to take land, and not to take personal property.
See http://constitution.org/proppriv/e-domain/dub-dom.html
Show More Show Less View Video Transcript
0:02
this is the second part of the August
0:06
20th
0:07
2013 Austin Constitution meet up I'm
0:10
John
0:12
Rand uh in this segment we will be
0:15
discussing the problem of em domain as
0:20
applied to personal
0:23
property this has come
0:26
up uh in a recent
0:28
case in the state of
0:31
California where the city of Richmond
0:34
has sued to try to take using its
0:38
emminent domain
0:40
Powers uh a number of mortgages on
0:45
homes um not the land on which the homes
0:50
are built but the mortgages on the on
0:54
that
0:55
land and their stated purpose is to be
0:59
able to uh uh get control of the
1:04
mortgages and thereby uh either uh uh
1:09
renegotiate them downward to match the
1:13
uh uh market value of the property many
1:17
of them are
1:18
underwater
1:19
or uh to uh even to perhaps for clothes
1:24
on them and take the houses and sell
1:26
them to somebody
1:27
else but
1:30
uh there's a problem with
1:33
that uh of course now the the banks The
1:37
Lending the lenders are objecting to
1:40
that they are suing to for declaratory
1:43
and injunctive relief uh to prevent the
1:46
city of Richmond from doing
1:49
that uh of course from their point of
1:51
view it's simply taking their property
1:55
and probably not paying full full value
1:57
for
1:58
it
2:01
um so the problem with that is
2:07
to
2:09
examine what it is that a mortgage is
2:14
and whether or not the power of imminent
2:17
domain applies to
2:18
it now the
2:21
original uh
2:24
concept of real property that is to say
2:28
land was that all
2:30
land was owned by The
2:33
Sovereign which in medieval times was
2:38
the the
2:40
Monarch um when the United
2:44
States separated from Britain and became
2:47
a
2:48
republic the Monarch was replaced as
2:53
Sovereign by the people
2:56
collectively and but if the principle
2:59
remained true
3:02
that
3:03
in MO almost every country the
3:07
underlying land is
3:11
not primarily owned by individual or
3:16
private parties it's owned by the
3:19
people and what people what individuals
3:22
or private parties can own are claims on
3:26
the
3:27
land which are sometimes called
3:30
States and a state is a bundle of Rights
3:34
it's a right to exclusive possession use
3:40
disposal inheritance conveyance
3:43
subdivision uh and so forth a large
3:47
bundle of rights that pertain to the
3:49
land but strictly
3:53
speaking those claims are not real
3:57
estate those are
4:00
that is say they're not real property
4:02
they're personal property because they
4:06
can be moved around and exchanged
4:09
separated divided held by different
4:12
parties uh so they have the character of
4:18
personal
4:20
property now the question arises whether
4:23
irent domain is a power that can be
4:27
applied to claims on land
4:30
or for that matter on any other kind of
4:32
personal property and not just on the
4:35
land
4:37
itself
4:39
um the US Constitution does not use the
4:42
term M
4:44
domain as nor do most state
4:47
constitutions it talks about takings
4:51
generally and there are more than one
4:54
way that government can take
4:56
property imminent domain is one of them
5:00
the most common situation uh in The
5:03
Early Republic was simply armies on the
5:08
uh in the in the field taking uh food
5:12
and Provisions that they might find in
5:16
farms and perhaps giving the farmer an
5:19
IOU but uh which was supposed to be paid
5:22
by the government but expropriating the
5:26
property for use by the military off
5:30
operations uh living off the land as it
5:33
were uh that is a kind of taking also
5:37
and it is covered by the Fifth Amendment
5:40
to the
5:41
Constitution but it is not the exercise
5:44
of emino domain
5:46
power that's these are two different
5:50
powers uh in fact the takings in the
5:53
field of battle would really
5:56
be more a matter of of a wartime power
6:01
than of eminent domain
6:04
power
6:06
so we had an interesting turn of events
6:10
though
6:11
the uh up until the case 1876 case of
6:17
coold the United
6:19
States it was
6:21
presumed that uh only the states were
6:26
Sovereign over their
6:27
land and that if the United States to
6:30
say the union government wanted to take
6:33
land they had to get the consent of the
6:36
state
6:37
legislature and they had to go through
6:40
state courts under the state's domain
6:43
emminent domain powers in order to get
6:46
that land they couldn't do it directly
6:49
but the cold decision
6:51
did is it sustained
6:54
claim uh or practice by
6:57
the US government
7:00
to take it
7:01
directly and if you recall on the
7:04
Constitution it provides in article one
7:07
section 8 of
7:10
16 that
7:12
uh the United States May
7:17
accept uh Parcels of land with the
7:20
consent of the state legislature for
7:23
purposes of a of a national capital and
7:27
for various other purp like Forts
7:31
dockyards and so forth but those all had
7:34
to require a the consent of the state
7:38
legislature they couldn't just be taken
7:41
directly the problem is that although
7:46
the union government did
7:49
have Sovereign ownership of land in the
7:55
territories it did not have in the
7:57
original 13 states and it did not have
8:01
in the territories when they were
8:04
organized as States when territory is
8:08
organized as a state and admitted into
8:10
the Union as on an equal basis with
8:13
other states the state thus created now
8:18
has the ultimate ownership of the land
8:21
in that
8:23
state uh even though the union
8:26
government might retain a
8:29
Fe simple title in some part of the land
8:34
in the state as they do with in large
8:38
Parcels in Nevada and other Western
8:41
States the simple fact is that that's
8:43
still ultimately state land with under
8:46
State Legislative
8:49
jurisdiction
8:53
uh
8:55
the so
8:58
the the the the the defining
9:00
characteristic of ownership is
9:03
legislative
9:04
jurisdiction in other words if a uh
9:09
lawmaker can make laws for a territory
9:12
it is the ultimate owner of that
9:15
territory uh regardless of
9:17
what
9:19
ownership in the form of Estates that
9:22
private parties may
9:25
have now the question arose not arises
9:30
now is there an Ultimate ownership of
9:33
the same kind in personal
9:37
property now a common argument for the
9:41
imposition of property
9:44
taxes on personal property is that the
9:48
state is also the ultimate owner of
9:51
personal
9:53
property
9:55
however uh that is not born out by of
9:59
the historical Legacy of our legal
10:03
system U there have many states have
10:06
enacted personal property taxes on
10:10
tangible
10:12
Commodities but not on intangible
10:15
Commodities that's they aren't
10:17
intangible personal
10:19
property uh
10:21
the theory when it's been challenged is
10:25
that tangible Commodities are are
10:29
somehow derived from the soil and
10:33
therefore carry with them some of the
10:36
attributes of uh ownership by The
10:40
Sovereign however that's not true of all
10:44
uh tangible
10:46
Commodities uh they are not all
10:51
uh derived from the soil at least not
10:54
from us soil they might come from
10:57
outside the United States
10:59
so uh if they come from the outside the
11:02
United States they are not strictly
11:05
speaking a derive from us
11:08
soil now clearly a mortgage being a
11:14
claim
11:15
on real property to secure payment of a
11:19
node is an intangible person form of
11:23
intangible personal
11:25
property and to seize it uh will take
11:30
something more
11:32
than the power of emminent
11:36
domain uh now such property can be
11:40
redistributed through civil
11:42
litigation where the government plays
11:45
the role of mediator in disputes as to
11:48
who is the real owner of things but
11:52
uh that is not the same thing as taking
11:57
it because it is the
12:00
it already owns it and is simply
12:03
extinguishing the claims to possession
12:05
and use of
12:06
it so uh my argument in this
12:11
paper article on constitution.org
12:15
which can be found under rights powers
12:18
and duties and you scroll down you'll
12:22
find the title dubious
12:24
domain I'm sorry you'll find property
12:28
property and
12:29
Privileges and then in the page on
12:32
property and privileges I'm sorry
12:34
property and privacy you will find uh a
12:37
link to the
12:39
article uh I combine property and
12:43
privacy into one page one Gateway page
12:48
because the two are very closely
12:51
linked
12:53
uh generally speaking uh one has privacy
12:58
in one's
13:00
property and uh
13:02
although
13:04
uh it is not always made clear the two
13:08
are so closely linked that it makes
13:10
sense to combine them in that
13:15
way so I contend that the coold case was
13:18
wrongly
13:20
decided
13:23
and that a state when it is created out
13:27
of territory
13:31
um over which the United States did not
13:35
have
13:37
Sovereign ownership of personal property
13:41
does not thereby acquire so that that
13:45
kind of sovereign
13:47
ownership um now one could argue that
13:51
the people of the state when they enact
13:53
a
13:55
constitution as is alleged that
13:57
California has done
13:59
uh could provide the state with the
14:02
authority to take personal property by a
14:05
in a
14:07
domain
14:10
however there's some question about
14:14
whether the people of the state even
14:17
have the authority to delegate that
14:19
power to a state
14:21
constitution and that's what I argue
14:23
against in my article that is not a
14:27
power that they is Theirs to delegate
14:31
and therefore it is
14:33
unconstitutional to take it through em
14:36
domain there may be other bases for
14:39
taking it more of a regulatory or tax
14:43
power bases but not through imminent
14:51
domain
#Government
#Bank-Owned & Foreclosed Properties
#Public Policy
#Constitutional Law & Civil Rights
#Real Estate Law
#Property Development
#Real Estate Title & Escrow