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February 6, 2010

Forum: Property rights: Plato or Adams?

By JIM FUSCALDO

In Plato's society, written laws must not restrict the elite's supervision of the common man. The elite deem themselves as shepherds of the people to govern them to always do the right thing.

To prevent the common man from doing anything stupid, the all-wise, self-appointed guardians of the environment have introduced House Bill 5319, sponsored by Rep. Dan Scripps, D-Leland, and others. The purpose of the bill is to take property interests in the "air, water and other natural resources ..." located on private land and transfer these private property interests to the state to be "held in trust ... for the benefit of present and future generations."

The bill fails to define "trust," therefore we must define "trust" in accordance with its generally accepted common law meaning. A trust is when the owner transfers legal title to his property to a trustee who holds it for the benefit of the trust beneficiaries according to the terms of the trust agreement.

The owner of the property must have the specific intent to voluntarily transfer the property to the trust for the purposes intended in order for the trust to be valid. In the absence of the property owner's specific intent and willingness to transfer his property interests to the state, House Bill 5319 results in an unlawful taking of private property interests.

Environmentalists may argue that the state is merely creating a constructive trust to "protect the natural resources of the state ... from pollution, impairment and destruction ... for the benefit of present and future generations."

Their conclusion ignores the constitutional prohibitions on the taking of private property rights without due process of law and just compensation.

The constitutional prohibitions against the taking of private property are set forth in the 5th and 14th amendments to the U.S. Constitution; and Article 1, Section 17 and Article 10, Section 2 of the Michigan State Constitution. Article 10, Section 5 of the State Constitution grants the Legislature supervisory jurisdiction only over state-owned lands, not private property interests.

The Department of Natural resources "has the power and jurisdiction over the management, control and disposition of all land under the public domain" Act 451-324.503 (1). The term public domain means "all land owned by the state or land deeded to the state under state law" Act 451- 324.301 (i).

Contrary to the desired wishes of the environmentalists it is not the right "of" property that is protected by the U.S. and State Constitutions, but the right "to" property. Property per se has no rights. It is the individual, the person, and not the government who has the unalienable rights to life, liberty and property.

John Adams said, "The moment the idea is admitted into society that property is not 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. Property must be secure or liberty cannot exist."

About the author: Jim Fuscaldo, of Cedar, is a retired scientist and attorney with a bachelor's degree in science and pharmacy and a law degree.

About the forum: The forum is a periodic column of opinion written by Record-Eagle readers in their areas of interest or expertise. Submissions of 500 words or less may be made by e-mailing letters@record-eagle.com. Please include biographical information and a photo.

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