Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

Amdt14.S1.5.3 Property Deprivations and Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like the liberty interest,¹ the concept of property rights has expanded beyond its common law roots, reflecting the Supreme Court’s recognition that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, in a case where household goods were sold under an installment contract and the seller retained title, the Court deemed the possessory interest of the buyer sufficiently important to require procedural due process before repossession could occur.² In another case, the Court held that the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was a sufficient property interest to require some form of determination that the garnisher was likely to prevail.³ The Court has also ruled that the continued possession of a driver’s license, which may be essential to one’s livelihood, is a protected property interest.⁴

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts.⁵ Another relevant factor was the decline of the distinction between rights and privileges. Justice Oliver Wendell Holmes summarized the distinction in dismissing a suit by a policeman who had been fired from his job for political activities: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.⁶ Under that theory, a finding that a litigant had no vested property interest in government employment,⁷ or that some form of public assistance was only a privilege rather than a right,⁸ meant that no procedural due process was required before depriving a person of that interest.⁹ The reasoning was that, if the government was under no obligation to provide some benefit, it could choose to provide that benefit subject to whatever conditions or procedures it deemed appropriate.

There was some tension between the position that the government was free to attach conditions to benefits and another line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. That line of thought, referred to as the unconstitutional conditions doctrine, held that, even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.¹⁰ Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when Court largely abandoned the right-privilege distinction.¹¹ By 1972, the Court declared that it had fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process rights.¹²

Concurrently with the decline of the right-privilege distinction, the Court embraced a mode of analysis known as the entitlement doctrine, under which the Court erected procedural protections against erroneous deprivation of benefits the government had granted on a discretionary basis.¹³ Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights, and natural rights. Under a new positivist approach, the Court might find a protected property or liberty interest based on any positive statute or governmental practice that gave rise to a legitimate expectation. This positivist doctrine can be seen in the 1970 case Goldberg v. Kelly, where the Court held that the government must provide an evidentiary hearing before terminating welfare benefits because such termination may deprive an eligible recipient of the means of livelihood.¹⁴ In reaching that conclusion, the Court found that welfare benefits are a matter of statutory entitlement for persons qualified to receive them.¹⁵ Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, the Court found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of statutory rights to the claimant led some lower courts to apply the Due Process Clause by weighing the interests involved and the harm done to a person deprived of a benefit. However, the Court held that this approach was inappropriate. It explained, [W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.¹⁶ To have a property interest in the constitutional sense, the Court held, it was not enough for a person to have an abstract need or desire for a benefit or a unilateral expectation. He must rather have a legitimate claim of entitlement to the benefit.¹⁷ The Court further explained that property interests are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.¹⁸

Consequently, in Board of Regents v. Roth, the Court held that a public university’s refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the university’s contract, regulations, or policies that created any legitimate claim to reemployment.¹⁹ By contrast, in Perry v. Sindermann, a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.²⁰ The Court deemed existing rules or understandings to have the characteristics of tenure, and thus to provide a legitimate expectation independent of any contract provision.²¹

The Court has also found legitimate entitlements in situations besides employment. In Goss v. Lopez, an Ohio statute provided for free education to all residents between five and twenty-one years of age and required school attendance; thus, the Court held that the state had obligated itself to provide students some due process hearing rights prior to suspending them.²² The Court explained, Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.²³ The Court is highly deferential, however, to school dismissal decisions based on academic grounds.²⁴

The more an interest differs from the traditional understanding of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales, the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order an estranged wife obtained against her husband, despite having probable cause to believe the order had been violated.²⁵ While noting statutory language that required that officers either use every reasonable means to enforce [the] restraining order or seek a warrant for the arrest of the restrained person, the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes.²⁶ The Court also questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.²⁷

In Arnett v. Kennedy, a majority of the Court rebuffed an attempt to limit the expansion of due process with respect to entitlements.²⁸ The case involved a federal law that provided that employees could not be discharged except for cause. A minority of three Justices acknowledged that due process rights could be created through statutory grants of entitlements, but observed that the statute at issue specifically withheld the procedural protections the employee sought. Because the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,²⁹ the employee would have to take the bitter with the sweet.³⁰ Thus, the minority would have held that Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required. The other six Justices, although disagreeing among themselves in other respects, rejected that reasoning. This view misconceives the origin of the right to procedural due process, Justice Lewis Powell wrote. That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.³¹

By contrast, in Bishop v. Wood, the Court accepted a district court’s finding that a policeman held his position at will, despite language setting forth conditions for discharge.³² Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, and the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett.

Subsequently, however, the Court held that, because minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.³³ The Court applied this analysis in Logan v. Zimmerman Brush Co., in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint.³⁴ The commission inadvertently scheduled the hearing after the expiration of the 120 days, and the state courts held the requirement to be jurisdictional, requiring dismissal of the complaint. The Supreme Court noted that various older cases had clearly established that causes of action were property, and, in any event, the claim at issue was an entitlement grounded in state law and thus could only be removed for cause. That property interest existed independently of the 120-day period and could not be taken away by agency action or inaction.³⁵

Footnotes

1. Jump to essay-1See S1.5.2 Liberty Deprivations and Due Process.
2. Jump to essay-2Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).
3. Jump to essay-3Sniadach v. Family Fin. Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).
4. Jump to essay-4Bell v. Burson, 402 U.S. 535 (1971) (holding that a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see  Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).
5. Jump to essay-5See Laurence Tribe, American Constitutional Law 685 (2d. ed) (1988).
6. Jump to essay-6McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892).
7. Jump to essay-7Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided court, 314 U.S. 918 (1951); Adler v. Bd. of Educ., 342 U.S. 485 (1952).
8. Jump to essay-8Flemming v. Nestor, 363 U.S. 603 (1960).
9. Jump to essay-9Barsky v. Bd. of Regents, 347 U.S. 442 (1954).
10. Jump to essay-10Perry v. Sindermann, 408 U.S. 593, 597 (1972). SeeSpeiser v. Randall, 357 U.S. 513 (1958).
11. Jump to essay-11SeeWilliam Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). A number of early cases involved the imposition of conditions on admitting corporations into a state.  W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981)) (reviewing the cases). Some more recent cases have continued to apply the right-privilege distinction. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971).
12. Jump to essay-12 of Regents v. Roth, 408 U.S. 564, 571 (1972).
13. Jump to essay-13The limitations were procedural and not substantive, meaning that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982).
14. Jump to essay-14397 U.S. 254 (1970).
15. Jump to essay-15at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).
16. Jump to essay-16 of Regents v. Roth, 408 U.S. 564, 569–71 (1972).
17. Jump to essay-17at 577.
18. Jump to essay-18
19. Jump to essay-19at 576–78.
20. Jump to essay-20408 U.S. 593 (1972). SeeLeis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).
21. Jump to essay-21at 601.
22. Jump to essay-22419 U.S. 565 (1975). Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). See also Bd. of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions).
23. Jump to essay-23at 574. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer’s license); O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care).
24. Jump to essay-24Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214 (1985). Although the Court assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment in a state university, it held that right is violated only by a showing that dismissal resulted from such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. at 225.
25. Jump to essay-25545 U.S. 748 (2005).
26. Jump to essay-26at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. The Court stated that such indeterminacy is not the hallmark of a duty that is mandatory. Id. at 763.
27. Jump to essay-27at 764–65.
28. Jump to essay-28416 U.S. 134 (1974).
29. Jump to essay-29at 155 (Rehnquist and Stewart, JJ., and Burger, C.J.).
30. Jump to essay-30at 154.
31. Jump to essay-31at 167 (Powell, J., and Blackmun, J., concurring). See id. at 177 (White, J., concurring and dissenting); id. at 203 (Douglas, J., dissenting); id. at 206 (Marshall, Douglas, and Brennan, JJ., dissenting).
32. Jump to essay-32426 U.S. 341 (1976).
33. Jump to essay-33Vitek v. Jones, 445 U.S. 480, 491 (1980). See alsoCleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
34. Jump to essay-34455 U.S. 422 (1982).
35. Jump to essay-35at 428–33. A different majority of the Court also found a denial of equal protection. Id. at 438.

https://constitution.congress.gov/browse/essay/amdt14-S1-5-3/ALDE_00013749/#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws

America’s Founders understood clearly that private property is the foundation not only of prosperity but of freedom itself. Thus, through the common law, state law, and the Constitution, they protected property rights — the rights of people to acquire, use, and dispose of property freely. With the growth of modern government, however, those rights have been seriously compromised. Unfortunately, the Supreme Court has yet to develop a principled, much less comprehensive, theory for remedying those violations. That failure has led to the birth of the property rights movement in state after state. It is time now for Congress to step in — to correct the federal government’s own violations and to set out a standard that courts might notice as they adjudicate complaints about state violations.

The Constitution protects property rights through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use without just compensation.” There are two basic ways government can take property: (1) outright, by condemning the property and taking title; and (2) through regulations that take uses, leaving the title with the owner — so‐​called regulatory takings. In the first case, the title is all too often taken not for a public but for a private use; and rarely is the compensation received by the owner just. In the second case, the owner is often not compensated at all for his losses; and when he is, the compensation is again inadequate.

Over the past three decades, the Supreme Court has chipped away at the problem of uncompensated regulatory takings, requiring compensation in some cases; but its decisions were largely ad hoc, leaving most owners to bear the losses themselves. Thus, owners today can get compensation when the title is actually taken, as just noted; when the property is physically invaded by government order, either permanently or temporarily; when regulation for other than health or safety reasons takes all or nearly all of the value of the property; and when government attaches conditions to permits that are unreasonable, disproportionate, or unrelated to the purpose behind the permit requirement. But despite those modest advances, toward the end of its October 2004 term, the Court decided three property rights cases in which the owners had legitimate complaints, and in all three, the owners lost. One of those cases was Kelo v. City of New London, in which the city condemned Ms. Kelo’s property only to transfer it to another private party that the city believed could make better use of it. In so doing, the Court simply brushed aside the “public use” restraint on the power of government to take private property. The upshot, however, was a public outcry across the nation and the introduction of reforms in over 40 states. But those reforms varied substantially, and nearly all leave unaddressed the far more common problem of regulatory takings.

At bottom, then, the Court has yet to develop a principled and comprehensive theory of property rights, much less a comprehensive solution to the problem of government takings. For that, Congress (or the Court) is going to have to turn to first principles, much as the old common law judges did. We need to begin, then, not with the public law of the Constitution as presently interpreted, but with the private law of property.

Property: The Foundation of All Rights

It is no accident that a nation conceived in liberty and dedicated to justice for all protects property rights. Property is the foundation of every right we have, including the right to be free. Every right claim, after all, is a claim to some thing — either a defensive claim to keep what one is holding or an offensive claim to something someone else is holding. John Locke, the philosophical father of the American Revolution and the inspiration for Thomas Jefferson when he drafted the Declaration of Independence, stated the issue simply: “Lives, Liberties, and Estates, which I call by the general Name, Property.” And James Madison, the principal author of the Constitution, echoed those thoughts when he wrote, “as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

Much moral and legal confusion would be avoided if we understood that all of our rights — all of the things to which we are “entitled” — can be reduced to property. That would enable us to separate genuine rights — things to which we hold title — from specious “rights” — things to which other people hold title, which we may want for ourselves. It was the genius of the old common law, grounded in reason and custom, that it grasped that point. And the common law judges understood a pair of corollaries as well: property, broadly conceived, separates one individual from another; and individuals are independent or free to the extent that they have sole or exclusive dominion over what they hold. Indeed, Americans go to work every day to acquire property just so they can be independent.

Legal Protection for Property Rights

It would be to no avail, however, if property, once acquired, could not be used and enjoyed — if rights of acquisition, enjoyment, and disposal were not legally protected. Thus, common law judges, charged with settling disputes between neighbors, drew on principles of reason, efficiency, and custom to craft a law of property that by and large respected the equal rights of all.

In a nutshell, the basic rights they recognized, beyond acquisition and disposal, were the right of sole dominion — variously described as a right to exclude others, a right against trespass, or a right of quiet enjoyment, which all can exercise equally at the same time and in the same respect — and the right of active use, at least to the point where such use violates the rights of others to quiet enjoyment. Just where that point is will vary with the facts, of course, and that is the business of courts to determine, although legislatures can draw the broad outlines. Given our modern permitting regime, however, the point to be noticed here is that the presumption of the common law was ordinarily on the side of free use. People were not required to obtain a permit before using their property, that is, just as people today are not required to obtain a permit before speaking. Rather, the burden was on those who objected to a given use to show how it violated a right of theirs. That amounts to having to show that their neighbor’s use takes something they own free and clear. If they failed in that, the use could continue.

Thus, the common law limits the right of free use only when a use encroaches on the property rights of others, as in the classic law of nuisance and risk. The implications of that limit should not go unnoticed, however, especially in the context of modern environmental protection. Indeed, the belief, common today, that property rights are opposed to environmental protection is so far from the case as to be just the opposite: the right against environmental degradation is a property right. Under common law, properly applied, people cannot use their property in ways that damage their neighbors’ property — defined, again, as taking things those neighbors hold free and clear. Properly conceived and applied, then, property rights are self‐​limiting: they constitute a judicially crafted and enforced regulatory scheme in which rights of active use end when they encroach on the property rights of others.

The Police Power and the Power of Eminent Domain

But if the common law of property defines and protects private rights — the rights of owners with respect to each other — it also serves as a guide for the proper scope and limits of public law — defining the rights of owners and the public with respect to each other. For public law, at least at the federal level, flows from the Constitution; and the Constitution flows from the principles articulated in the Declaration of Independence; and those reflect, largely, the common law. The justification of public law begins, then, with our rights, as the Declaration makes clear. Government then follows, not to give us rights through positive law but to recognize and secure the rights we already have through natural law. Thus, to be morally legitimate, the powers of government must be derived from and consistent with those rights.

The two public powers most often at issue in the property rights context are the police power — the power of government mainly to secure rights — and the power of eminent domain — the power to take property for public use upon payment of just compensation, as set forth, by implication, in the Fifth Amendment’s Takings Clause.

The general police power — the fundamental power of government — is derived from what Locke called the Executive Power, the power each of us has in the state of nature to secure our rights. Thus, as such, this legal power is legitimate since it is nothing more than the public law version of a moral power we already have, by right, which we gave to government to exercise on our behalf when we constituted ourselves as a nation. But its exercise is legitimate only insofar as it is used to secure rights and to provide certain “public goods” like national defense and clean air — narrowly defined as economists do, citing free‐​rider problems, nonexcludability, and nonrivalrous consumption — and only insofar as its use respects the rights of others. Thus, while our rights give rise to the police power, they also limit it. We cannot use the police power for non‐​police‐​power purposes. It is a power mainly to secure rights through restraints or sanctions, not some general power to provide the public with goods and services more broadly defined.

A complication arises in the case of the federal government, however, because there is no general federal police power. Rather, the Constitution establishes a government of delegated, enumerated, and thus limited powers, leaving most powers, including the general police power, with the states or the people, as the Tenth Amendment makes clear. Consistent with constitutional principle, then, whatever power the federal government has to secure rights is limited to federal territory, is incidental to one of its enumerated powers, or is entailed mainly through the amendments. (See Chapter 15 for greater detail on this point.)

But if the police power is thus limited, then any effort to provide the public with goods and services more broadly must be accomplished under some other power, such as those, in the case of the federal government, that are enumerated in Article I, Section 8 of the Constitution. Yet that effort will be constrained by the Takings Clause, which requires that private property taken in pursuit of such ends — whether in whole or in part is irrelevant — must be accompanied by just compensation for the owner of the property. Otherwise the costs of the benefit to the public would fall entirely on the owner. Not to put too fine a point on it, that would amount to theft. Indeed, it was to prohibit that kind of thing that the Framers wrote the Takings Clause in the first place.

Thus, the power of eminent domain — which is not enumerated in the Constitution but is implicit in the Takings Clause — is an instrumental power: It affords a means that enables government, acting under some other power, to pursue other ends — building roads, for example, or saving wildlife. Moreover, unlike the police power, the eminent domain power is not inherently legitimate: Indeed, in a state of nature, prior to the creation of government, none of us would have a right to condemn a neighbor’s property, however worthy our purpose, however much we compensated him. Thus, it is not for nothing that eminent domain was known in the 17th and 18th centuries as “the despotic power.” It arises from practical considerations alone — to enable public projects to go forward without being held hostage to holdouts seeking to exploit the situation by extracting far more than just compensation. As for its justification, the best that can be said for eminent domain is this: the power was ratified by those in the original position; and it is “Pareto superior,” as economists say, meaning that at least one party (the public) is made better off by its use, as evidenced by its willingness to pay, while no one is made worse off, assuming the owner receives just compensation.

When Is Compensation Required?

We come then to the basic question: When do owners have to be compensated as a result of government actions? In general, there are four scenarios to consider.

First, when government actions incidentally reduce property values, but no rights are violated because nothing that belongs free and clear to the owner is taken, no compensation is due. If the government closes a military base or a neighborhood school, for example, or builds a new highway distant from the old one with its commercial enterprises, property values may decline as a result — but nothing was taken. We own our property and all the legitimate uses that go with it, not the value in our property, which is a function of many ever‐​changing factors.

Second, when government acts, under its police power, to secure rights — when it stops someone from polluting, for example, or from excessively endangering others — the restricted owner is not entitled to compensation, whatever his financial losses, because the uses prohibited or “taken” were wrong to begin with. Since there is no right to pollute, no right was taken. Thus, we do not have to pay polluters not to pollute. Here again the question is not whether value was taken but whether a right was taken. Proper uses of the police power take no rights. They protect rights.

Third, when government acts not to secure rights but to provide the public with goods like wildlife habitat, scenic views, or historic preservation, and in so doing prohibits or “takes” some otherwise rightful use, then it is acting, in part, under the eminent domain power and does have to compensate the owner for any losses he may suffer. The principle here is quite simple: the public has to pay for the goods it wants, just like any private person would have to. Bad enough that the public can take what it wants by condemnation; at least it should pay for what it takes rather than ask the owner to bear the full cost of its appetite. It is here, of course, that modern regulatory takings abuses are most common, as governments at all levels try to provide the public with all manner of amenities, especially environmental amenities, “off budget.” As noted above, there is an old‐​fashioned word for that practice — “theft” — and no amount of rationalization about “good reasons” will change that. Even thieves, after all, have “good reasons” for what they do.

Finally, when government, through full condemnation, takes for public use not simply some or all of the owner’s uses but the entire estate, including the title, compensation is clearly due.

Some Implications of a Principled Approach

Starting from first principles, then, we see that there is no difference in principle between the full use of eminent domain just described and a regulatory taking — between taking full title and taking only uses. Thus, the oft‐​heard claim that the Takings Clause requires compensation only for “full” takings will not withstand scrutiny. Giving the clause a natural reading, it speaks simply of “private property.” As Madison wrote (above), “property” denotes all the uses or rights that can rightly be made of a holding. It does not denote simply the underlying estate. In fact, in every area of property law except regulatory takings, we speak of property as being a “bundle of sticks,” any one of which can be bought, sold, rented, bequeathed, what have you. Yet, to enable government to provide the public with goods “off budget” and thus “on the cheap,” takings law has clung to the idea that only if the entire bundle is taken does government have to pay compensation.

That view enables government to extinguish nearly all uses through regulation — and hence to regulate nearly all value out of property — yet escape the compensation requirement because the all‐​but‐​empty title remains with the owner. And it would allow a government to take 90 percent of the value in year one, then come back a year later and take title for a dime on the dollar. Not only is that wrong, it is unconstitutional. It cannot be what the Takings Clause stands for. The principle, rather, is that property is indeed a bundle of sticks, a bundle of rights: take one of those sticks and you take something that belongs to the owner. The only question then is how much his loss is worth.

Thus, when the Court in 1992 in Lucas v. South Carolina Coastal Council crafted what is effectively a 100 percent rule, whereby owners are entitled to compensation only if regulations restrict uses to a point where all value is lost, it went about the matter backward. It measured the loss to determine whether there was a taking. As a matter of first principle, the Court should have determined first whether there was a taking — whether otherwise legitimate uses were prohibited by the regulation — and only then should it have measured the loss. That addresses the principle of the matter. It then remains simply to measure the loss in value and hence the compensation that is due. In Lucas, since all uses were effectively taken, full compensation was due. The place to start, in short, is with the first stick, not the last dollar. That is especially so since most regulatory takings take only some uses, thus reducing the value of the property by less than its full value.

More generally, the principled approach to takings requires that the Court have a basic understanding of the theory of the matter and a basic grasp of how to resolve conflicting claims about use in a way that respects the equal rights of all. That is hardly a daunting task, as the old common law judges demonstrated, although the application of those principles in particular cases can be complicated, to be sure. But in general, as already noted, the presumption is on the side of active use until some plaintiff demonstrates that such use takes the quiet enjoyment that is his by right (and the defendant’s right as well). At that point the burden shifts to the defendant to justify his use: absent some defense like the prior consent of the plaintiff, the defendant may have to cease his use — or, if his activity is worth it, offer to buy an easement or buy out the plaintiff. Thus, a principled approach respects equal rights of quiet enjoyment — and hence environmental protection. But it also enables active uses to go forward — though not at the expense of private or public rights. Users can be as active as they wish, provided they handle the “externalities” they create in a way that respects the rights of others.

What Congress Should Do

As already noted, the application of these principles is often fact dependent and so is best done by courts. But until our courts, and the Supreme Court in particular, craft a more principled and systematic approach to takings, Congress can assist by drawing at least the broad outlines of such an approach as a guide both for the courts and, more directly, for federal agencies.

In this last connection, however, Congress should recognize that the regulatory takings problem begins with regulation. Doubtless the Founders did not anticipate the modern regulatory state, so they did not specify that regulatory takings are takings too and thus are subject to the Just Compensation Clause. They did not envision our obsession with regulating every human activity and our insistence that such activities — residential, business, what have you — take place only after a grant of official permission. In some areas of business today, we have almost reached the point at which everything that is not permitted is prohibited. That reverses our Founding principle: everything that is not prohibited is permitted — that is, “freely allowed,” not allowed only after obtaining a government permit.

Homeowners, developers, farmers and ranchers, mining and timber companies, firms large and small, profit seeking and not for profit, all have horror stories about regulatory hurdles they confront when they want to do something, particularly with real property. Many of those regulations are legitimate, of course, especially if they aim, preemptively, at securing genuine rights. But many more are aimed at providing some citizens with benefits at the expense of other citizens. They take rights from some to benefit others. At the federal level, such transfers are not likely to find authorization under any enumerated power. But even if constitutionally authorized, they need to be undertaken in conformity with the Takings Clause. Some endangered species, to take a prominent modern example, may indeed be worth saving, even if the authority for doing so belongs to states, and even if the impetus comes from a relatively small group. We should not expect a few property owners to bear all the costs of that undertaking, however. If the public truly wants the habitat for such species left undisturbed, let it buy that habitat or, failing that, pay the costs to the relevant owners of leaving their property unused.

In general, then, Congress should review the many federal regulations affecting private property to determine which are and are not authorized by the Constitution. If not authorized, they should be rescinded, which would end quickly a large body of regulatory takings now in place. But if authorized under some constitutionally enumerated power of Congress, the costs now imposed on particular owners, for benefits conferred on the public generally, should be placed “on budget.” Critics of doing that are often heard to say that if those goods did go on budget, we couldn’t afford them. What they are really saying, of course, is that taxpayers would be unwilling to pay for all the things the critics want. Indeed, the great fear of those who oppose taking a principled approach to regulatory takings is that once the public has to pay for the benefits it now receives “free,” it will demand fewer of them. It should hardly surprise that when people have to pay for something they demand less of it.

It is sheer pretense, of course, to suppose that such benefits are now free, that they are not already being paid for. Isolated owners are paying for them, not the public. As a matter of simple justice, Congress needs to shift the burden to the public that is enjoying the benefits. Once we have an honest, public accounting, we will be in a better position to determine whether the benefits thus produced are worth the costs. Today, we have no idea about that because all the costs are hidden. When regulatory benefits are thus “free,” the demand for them, as we see, is all but infinite.

But in addition to eliminating, reducing, or correcting its own regulatory takings — in addition to getting its own house in order — Congress needs to enact general legislation on the subject of takings that might help to restore respect for property rights and reorient the nation toward its own first principles. To that end, Congress should do the following.

Enact Legislation That Specifies the Constitutional Rights of Property Owners under the Fifth Amendment’s Takings Clause

As already noted, legislation of the kind recommended here would be unnecessary if the courts were reading and applying the Takings Clause properly. Because they are not, it falls to Congress to step in. Still, there is a certain anomaly in asking Congress to do the job. Under our system, after all, the political branches and the states represent and pursue the interests of the people within the constraints established by the Constitution; and it falls to the courts, and the Supreme Court in particular, to ensure that those constraints are respected. To do that, the Court interprets and applies the Constitution as it decides cases brought before it — often against the political branches or a state when an owner seeks either to enjoin a government action on the ground that it violates his rights or to obtain compensation under the Takings Clause, or both. Thus, it is somewhat anomalous to ask or expect Congress to right wrongs that Congress itself may be perpetrating. Is not Congress, in carrying out the public’s will, simply doing its job?

Yes, that is part of its job. But members of Congress swear to uphold the Constitution, which requires them to exercise independent judgment about the meaning of its terms. And in that connection, they need to recognize that we do not live in anything like a pure democracy. The Constitution sets powerful and far‐​reaching restraints on the powers of all three branches of the federal government and, especially since ratification of the Civil War Amendments, on the states as well. Thus, the idea that Congress simply enacts whatever some transient majority of the population wants enacted, leaving it to the courts to determine the constitutionality of its acts, must be resisted. The oath of office is taken on behalf of the people, to be sure, but through and in conformity with the Constitution. Even if the courts fail to secure the liberties of the people, therefore, nothing in the Constitution prevents Congress from exercising the duties entailed by the oath of office. In fact, that oath requires Congress to step into the breach.

There is no guarantee, of course, that Congress will do a better job of interpreting the Constitution than the Court has done. In fact, given that Congress is one of the political branches and thus an “interested” party, it could very well do a worse job. That is why the Framers placed “the judicial Power” — entailing, presumably, the power ultimately to say what the law is — with the Court, the nonpolitical branch. But that is no reason for Congress to ignore its responsibility to make its judgment known, especially when the Court is clearly wrong, as it is here. Although nonpolitical in principle, the Court does not operate in a political vacuum — as it demonstrated in 1937, unfortunately, after Franklin Roosevelt’s notorious Court‐​packing threat. If the Court can be persuaded to undo the centerpiece of the Constitution, the doctrine of enumerated powers, as it did after that extraordinary and unconscionable political interference, one imagines it can be persuaded by Congress to restore property rights to their proper constitutional status.

Thus, to start, Congress should revisit and rescind or correct legislation that results in uncompensated regulatory takings — and enact no such legislation in future. In addition, however, Congress should enact a more general statute that specifies the constitutional rights of property owners under the Fifth Amendment’s Takings Clause, drawing on common law principles to do so.

Follow the Traditional Common Law in Defining “Private Property,” “Public Use,” and “Just Compensation”

As we saw above, property rights are not protected by the Fifth Amendment’s Takings Clause alone — that is, by positive constitutional law. Indeed, during the more than two years between the time the Constitution was ratified and took effect and the time the Bill of Rights was ratified, it was the common law that protected property rights against both private and public invasion. Thus, the Takings Clause simply made explicit, against the new federal government, the guarantees that were already recognized under the common law. (Constitutional protection was implicit during that time, of course, through the doctrine of enumerated powers, for no uncompensated takings were authorized under the new Constitution.) And with the ratification of the Civil War Amendments — the Fourteenth Amendment’s Privileges or Immunities Clause, in particular — the common law guarantees against the states were constitutionalized as well. Thus, because the Takings Clause takes its inspiration and meaning from the common law of property, it is there that we must look to understand its terms.

“Private property.” The first of those terms is “private property”: “nor shall private property be taken for public use without just compensation.” As every first‐​year law student learns, “private property” means far more than a parcel of real estate. Were that not the case, property law would indeed be an impoverished subject. Instead, the common law reveals the many significations of the concept “property” and the rich variety of arrangements that human imagination and enterprise have made of the basic idea of private ownership. As outlined above, however, those arrangements all come down to three basic ideas — acquisition, exclusive use, and disposal, the three basic rights we have in property, from which more specifically described rights may be derived.

With regard to regulatory takings, however, the crucial thing to notice is that, absent contractual arrangements to the contrary, the right to acquire and hold property entails the right to use it as well. As Madison wrote, people have “a property” in their rights, including in their rights of use. If the right to property did not entail rights of use, it would be an empty promise. People acquire property, after all, only because doing so enables them to use it, which is what gives it its value. Indeed, the fundamental complaint about uncompensated regulatory takings is that, by thus eliminating some or all of the uses owners may make of their property, government makes the title they retain that much less valuable — even worthless in extreme cases. Who would buy property that cannot be used?

The very concept of “property” therefore, entails and denotes all the legitimate uses that can be made of the underlying estate, giving it value. And the uses that are legitimate are those that can be exercised consistent with the rights of others, private and public alike, as defined by the traditional common law. As outlined above, however, the rights of others that limit an owner’s uses depend often on the facts. Thus, legislation can state only the principle of the matter, not its application in specific contexts. Still, the broad outlines should be made clear in any congressional enactment. In particular, the term “private property” should be defined to include all the uses that can be made of property consistent with the common law rights of others. The only grounds that justify restricting uses without compensation are (1) to protect the rights of others; and (2) to provide narrowly defined “public goods,” where owners receive public benefits equivalent to the losses incurred by regulation. By contrast, when a particular owner’s uses are restricted to provide the general public with goods more broadly defined, the resulting loss in value should be compensated.

“Public use.” Turning now from regulatory takings to the full use of eminent domain, here the government condemns the entire property and takes title in order to give the property a “public use” — a military base, for example, or a public school or highway. Unfortunately, governments today too often use eminent domain for much broader purposes, and courts have sanctioned such condemnations by reading “public use” as “public benefit.” That has led to private‐​public collusion against private rights as governments condemn private property for the benefit of other private users, either directly or by delegating their condemnation power to a quasi‐​public or even a private entity. Those are rank abuses of the eminent domain power, amounting often to implicit grants of private eminent domain and to invitations to public graft and corruption. Typically, when a large private entity wants to expand, it goes to the relevant public agency and asks that a nearby property be condemned and title transferred to it, arguing that the expansion will benefit the public through increased jobs, business, taxes, what have you. No longer needing to bargain with the owners of the target properties in an effort to buy them, the entity simply asks or even pays the agency to condemn the properties “for the public good.”

Because eminent domain is a “despotic power,” it should be used rarely and only for genuinely public uses. That means uses that are broadly enjoyed by the public, rather than by some narrow part of the public; and in the case of the federal government, it means a constitutionally authorized use. In defining “public use,” however, facts matter, and sometimes there is no bright line. Nevertheless, certain general considerations can be noted. To begin, if the compensation is just, then no problem arises when title is transferred to the public for a genuine public use such as those mentioned above. Nor is there a problem when title is transferred to a private party — for example, to avoid the holdout situation that might arise with laying cable or telephone lines — provided the subsequent use is open to all on a nondiscriminatory basis, often to be regulated in the public interest. In such cases, were eminent domain available only when the public kept the title, the public would be deprived of the relative efficiencies of private ownership.

Beyond such cases, however, the public use restriction on employing eminent domain looms ever larger. Thus, condemnation for “blight reduction,” often a ruse for transferring title to a private developer, sweeps too broadly. If the “blighted” property constitutes an actual nuisance, it can be condemned under the police power, after all, without transferring title to another owner. A close cousin to the blight reduction rationale is the “economic development” rationale used in the infamous Kelo case and often used for the erection of privately owned sports stadiums; this rationale should never be allowed, whatever the claimed public benefit. Private economic development nearly always generates spillover benefits for the public, but that is no justification for using eminent domain. since private markets provide ample opportunities for obtaining the property needed for development the right way, by voluntary agreement. To avoid abuse and the potential for corruption, therefore, Congress needs to define “public use” rigorously, with reference to titles, use, and control.

“Just compensation.” Finally, Congress should define “just compensation” with an eye to its function: it is a remedy for the wrong of taking someone’s property. That the Constitution implicitly authorizes that wrong does not change the character of the act, of course. As discussed above, the rationale for this despotic power, even when properly used, is problematic. Given that, the least the public can do is make the victim of its use whole. That too will be a fact‐​dependent determination, but Congress should at least make it clear that for compensation to be “just” and hence to make the owner whole, he must receive more than the “market value” of his property, the normal standard today. After all, the simple fact that the owner does not have his property on the market indicates that its value to him is greater than the market price. Moreover, his compensation should reflect the fact that his loss arises not by mere accident, as with torts, but from a deliberate decision by the public to force him to give up his property.

In the case of regulatory takings, however, it should be noted that not every such taking will require compensation for an owner. Minimal losses, for example, may be difficult to prove and not worth the effort. Moreover, some regulatory restrictions may actually enhance the value of property — say, if an entire neighborhood is declared “historic.” Finally, that portion of “just compensation” that concerns market value should reflect value before, and with no anticipation of, regulatory restrictions. Thus, in determining compensation, government should not benefit from reductions in value its regulations bring about. Given the modern penchant for regulation, that may not always be easy. But in general, given the nature of condemnation as a forced taking, any doubt should be resolved to the benefit of the owner forced to give up his property.

If Congress enacts general legislation that outlines the constitutional rights of property owners by following the common law in defining the terms of the Takings Clause, it will abolish, in effect, any real distinction between partial and full takings. Nevertheless, Congress should be explicit about what it is doing.

Treat Property Taken through Regulation the Same As Property Taken through Physical Seizure

The importance of enacting a unified and uniform takings law cannot be overstated. Today, we have one law for “full takings,” “physical seizures,” “condemnations” — call them what you will — and another for “partial takings,” “regulatory seizures,” or “condemnations of uses.” Yet there is overlap, too. Thus, as noted above, the Court has said that if regulations take all uses, compensation is due — perhaps because eliminating all uses comes to the same thing, in effect, as a “physical seizure,” whereas eliminating most but not all uses seems not to come to the same thing.

That appearance is deceptive, of course. In fact, the truth is much simpler — but only if we go about discovering it from first principles. If “property” signifies not only the underlying estate but all legitimate uses that by right can be made of it, then any government action that takes any one of those uses or rights is, by definition, a taking — requiring compensation for any financial losses the owner may suffer as a result. The issue is really no more complicated than that. There is no need to distinguish “full” and “partial” takings: every condemnation, whether full or partial, is a taking. Indeed, the use taken is taken “in full.” Imagine that the property were converted to dollars — 100 dollars, say. Would we say that if the government took all 100 dollars there was a taking, but if it took only 50 of the 100 dollars there was not a taking? Of course not. Yet that is what we say under the Court’s modern regulatory takings doctrine: as one justice put it, “takings law is full of these ‘all‐​or‐​nothing’ situations.”

That confusion must end. Through legislation specifying the rights of property owners, Congress needs to make it clear that compensation is required whenever government eliminates common law property rights and an owner suffers a financial loss as a result — whether the elimination results from regulation or from outright condemnation.

Provide a Single Forum in Which Property Owners May Seek Injunctive Relief and Just Compensation Promptly

The promise of the common law and the Constitution will be realized, however, only through procedures that enable aggrieved parties to press their complaints. Some of the greatest abuses today are taking place because owners are frustrated at every turn in their efforts to reach the merits of their claims. Accordingly, Congress should provide a single forum for owners to press their claims.

In its 1998 term, the Supreme Court decided a takings case that began 17 years earlier, in 1981, when owners applied to a local planning commission for permission to develop their land. After submitting numerous proposals over this period, each rejected, even though each satisfied the commission’s previous recommendation, the owners finally sued, at which point they faced the hurdles the courts put before them. Most owners, of course, cannot afford to go through such a long and expensive process, at the end of which the odds are still against them. But that process confronts property owners across the nation today as they seek to enjoy and then to vindicate their rights. If it were speech or voting or any number of other rights, the path to vindication would be smooth by comparison. But property rights have been relegated to a kind of second‐​class status.

The first problem is the modern permitting regime. We would not stand for speech or religion or most other rights to be enjoyed only by permit. Yet that is what we do with property rights, which places enormous, often arbitrary, power in the hands of federal, state, and local “planners.” Driven by political goals and considerations, planning commissions open the application forum not only to those whose rights might be at stake but to those with interests in the matter. Thus is the common law distinction between rights and interests blurred and eventually lost. Thus is the matter transformed from one of protecting rights to one of deciding whose “interests” should prevail. Thus are property rights effectively politicized. And that is the end of the matter for most owners because that is as far as they can afford to take it.

When an owner does take it further, however, he finds the courts are often no more inclined to hear his complaint than was the planning commission. Federal courts routinely abstain from hearing federal claims brought against state and local governments, requiring owners to litigate their claims in state courts before they can even set foot in a federal court on their federal claims. Moreover, the Supreme Court has held that an owner’s claim is not ripe for adjudication unless (1) he obtains a final, definitive agency decision regarding the application of the regulation in question, and (2) he exhausts all available state compensation remedies.

Needless to say, planners, disinclined to approve applications to begin with, treat those standards as invitations to stall until the “problem” goes away. Then, if an owner does spend years and extraordinary expense jumping through those hoops and he gets into federal court at last, he faces the res judicata restriction of the federal Full Faith and Credit Act: the court will say that the case has already been adjudicated by the state courts. Finally, if the claim is against the federal government, the owner faces the so‐​called Tucker Act Shuffle: he cannot get injunctive relief and compensation from the same court but must go to a district court for an injunction and to the Court of Federal Claims for compensation, each waiting upon the other to act.

The 105th and 106th Congresses tried to address those procedural hurdles through several measures, none of which passed both houses. Those or similar measures must be revived and enacted if the unconscionable way we treat owners — who are simply trying to vindicate their constitutional rights — is to be brought to an end. This is not an “intrusion” on state and local governments. Under the Fourteenth Amendment, properly understood and applied, those governments have no more right to violate the constitutional rights of citizens than the federal government has to intrude on the legitimate powers of state and local governments. Federalism is not a shield for local tyranny. It is a brake on tyranny, whatever its source.

Conclusion

The Founders would be appalled to see what we have done to property rights over the course of the 20th century. One would never know today that their status in the Bill of Rights was equal to that of any other right. The time has come to restore respect for these most basic of rights, the foundation of all of our rights. Indeed, despotic governments have long understood that if you control property, you control the media, the churches, the political process itself. We are not, of course, at that point yet. But if regulations that provide the public with benefits continue to grow, unchecked by the need to compensate those who bear the costs, we will gradually slide to that point — and in the process we will pay an increasingly heavy price for the uncertainty and inefficiency we create. The most important price, however, will be to our system of law and justice. Owners are asking simply that their government obey the law — both the common law and the law of the Constitution. Reduced to its essence, they are saying simply this: stop stealing our property; if you must take it, do it the right way — pay for it. That hardly seems too much to ask.

PROPERTY RIGHTS, HOUSING, AND THE AMERICAN CONSTITUTION: THE SOCIAL BENEFITS OF PROPERTY RIGHTS PROTECTION, GOVERNMENT INTERVENTIONS, AND THE EUROPEAN COURT ON HUMAN RIGHTS’ HUTTENCZAPSKA DECISION*

1. INTRODUCTION

The U.S. Constitution provides protection for private property owners when the government intervenes through official regulations restricting an owner’s rights in land or housing. When the government acts through regulatory intervention that restricts the private use of land and housing, the property rights of affected owners are protected under the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the U.S. Constitution. These provisions apply regardless of the personal status or income of the affected private owner.

Government intervention by police power regulation of land and housing in the United States is constrained by judicial interpretation of the constitutional protection afforded private owners of property. The Fifth Amendment of the U.S. Constitution provides that “[n]o 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.” The next section of this Article discusses the legal protection afforded private housing and landowners by the U.S. Constitution’s Takings Clause and the court decisions interpreting this provision.

Court on Human Rights’ Hutten-Czapska decision, which involved rent controls imposed on apartment housing in Poland.⁶ The European Court ruled that rent controls violated the right to property in the European Convention on Human Rights. Over time, rent controls denied a housing owner any economically viable use of his property, which amounted to a disproportionate and impermissible benefit extraction of the owner’s interest in the property. The rationale of the Court’s decision closely parallels the U.S. Supreme Court’s analysis of the protection of private property under the U.S. Constitution.

The constitutional protection of private property rights in the United States is thought to promote economic prosperity and efficiency, as well as basic fairness and individual liberty.

https://mckinneylaw.iu.edu/iiclr/pdf/vol21p25.pdf

The General Nature of Property Rights

What Are Property Rights, and Why Do They Matter?

What Are Property Rights?

Property rights define the theoretical and legal ownership of resources and how they can be used. These resources can be both tangible or intangible and can be owned by individuals, businesses, and governments.

In many countries, including the United States, individuals generally exercise private property rights or the rights of private persons to accumulate, hold, delegate, rent, or sell their property.

In economics, property rights form the basis for all market exchange, and the allocation of property rights in a society affects the efficiency of resource use.

Acquiring Rights to a Property

Individuals in a private property rights regime acquire and transfer in mutually agreed-upon transfers, or else through homesteading. Mutual transfers include rents, sales, voluntary sharing, inheritances, gambling, and charity.

Homesteading is the unique case; an individual may acquire a previously unowned resource by mixing his labor with the resource over a period of time. Examples of homesteading acts include plowing a field, carving stone, and domesticating a wild animal.

In areas where property rights don’t exist, the ownership and use of resources are allocated by force, normally by the government. That means these resources are allocated by political ends rather than economic ones. Such governments determine who may interact with, can be excluded from, or may benefit from the use of the property.

Private Property Rights

Private property rights are one of the pillars of capitalist economies, as well as many legal systems, and moral philosophies. Within a private property rights regime, individuals need the ability to exclude others from the uses and benefits of their property.

All privately owned resources are rivalrous, meaning only a single user may possess the title and legal claim to the property. Private property owners also have the exclusive right to use and benefit from the services or products. Private property owners may exchange the resource on a voluntary basis.

Special Considerations

Private Property Rights and Market Prices

Every market price in a voluntary, capitalist society originates through transfers of private property. Each transaction takes place between one property owner and someone interested in acquiring the property. The value at which the property exchanges depends on how valuable it is to each party.

Suppose an investor purchases $1,000 in shares of stock in Apple. In this case, Apple values owning the $1,000 more than the stock. The investor has the opposite preference, and values ownership of Apple stock more than $1,000.

source

The Framers’ Understanding of “Property”

ELLIS ACT

The Ellis Act is a provision in California Law that provides landlords in California with a legal way to “go out of business” short of selling the property to another landlord. The Ellis Act “was adopted by the California Legislature in 1985 after the California Supreme Court ruled that landlords do not have the right to evict tenants to go out of the business of being a landlord”.

Municipalities can regulate the Ellis Act eviction process to some extent. Those that do typically restrict the property from use as a rental property for a period of time and require that it go back under rent control provisions if it is returned to the rental market.

Learn More about property and your rights below:

Property Rights and the Constitution – The General Nature of Property Rights

Landlord’s Right to Entry in California

Rules and Regulations Governing California Landlord – Tenant Laws – California Landlord / Tenant Laws

read more:

The Attorney’s Sworn Oath

“Civility” Oath Rule Adopted by Supreme Court

Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Code of Conduct for United States Judges

Suing for Misconduct – Know More of Your Rights

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

Model Rule 4.4 – Respect for the Rights of Others

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

Model Rule 8.1 Bar Admission & Disciplinary Matters

Model Rule 8.2 – Judicial & Legal Officials

Model Rule 8.3 – Reporting Professional Misconduct

Model Rule 8.4 pt.1 – Lawyer Misconduct

ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

Model Rule 8.4 pt.2 – Discrimination & Harassment

Attorney Ethics Rules – FOX 17 Know the Law

GOVERNMENT AGENT ACTING AS THE STATUTE MERCHANT

Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.See, e.g.,Utah Power & Light Co. V. United States, 243 U.S. 389 (1917) 409, 391; United States V. Stewart, 311 U.S. 60 (1940) 70, 108, and see, generally, In re: The Floyd Acceptances, 7 Wall 666 (1868)

NEITHER THE FOR PROFIT GOVERNMENT NOR THE STATUTE MERCHANT/AGENT HAS ACCESS TO SOVEREIGN IMMUNITY

As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transaction of the corporation, and exercises no power or privilege which is not derived from the charter.);United States of America v. Georgia-pacific Company, 421 F.2d 92

Government may also be bound by the doctrine of equitable estoppel if acting in proprietary [for profit nature ] rather than sovereign capacity); the “Savings to Suitor Clause” is also available for addressing mercantile and admiralty matters aka “civil process” at the common law.

THE SECURED NATURAL RIGHT IS ASSURED

His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of law. He owes nothing to the public so long as he does not trespass upon their rights. On the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its power.);

THE PRIVATE INSOLVENT STATUTE CANNOT UNILATERALLY APPLY TO THE BIOLOGICAL MAN OR WOMAN ABSENT VOLUNTARY ACCEPTANCE

“Courts enforcing your [municipal] statutes do not act judicially but merely ministerally, having thus no judicial immunity and unlike courts of lawdo not obtain jurisdiction by service of process nor even arrest and compelled appearance.”Boswell’s Lessee v. Otis, 50 U.S. 336 (1850)

THE CLEARFIELD DOCTRINE IS CONTROLLING AS REGARDS GOVERNMENT AS A PRIVATE PARTY

When Government is reduced to the Standing of a Private Party by their own election to proceed privately in commerce . . . and any presentment or offer of process and thereby commercial transaction becomes a taxable event and the presenter/transferor is required to execute an IRS Form W-9 surrendering his or her Social Security number so that the transaction may be reported to the IRS on Form 1099-OID as a tax liability assignable to the presenter of the instrument.

Whereas, once the bill is assessed on the 1040-V, the agency is forced into a tax loss write-off and all of the agencies forward sales contracts / agreements (which includes all bonds & securities) are accelerated into time to maturity where the agency on down becomes null & void.　 Does this not include the court itself?　 Case in point:　 HUD contracts (forward sales) with the property management company MC&B, which then contracts with the law firm (forward sales), which contracts with the Court (forward sales) and both appear to employ coercive policies to achieve their commercial scheme to intentionally extort the available credit.　 The court and the agencies are themselves a private business and thereby, the forward sales includes said court and becomes just as much a moot point as all other forward sales since this process comes within the Clearfield doctrine to wit:

“As the use of private corporate commercial negotiable paper, debt currency or [Federal Reserve notes] securities [checks] Bonds Vouchers and the like is concerned, said use, removes the sovereignty status of the government and reduces said government to doing business as a private entity, rather than a government in the area of finance and commerce. This circumstance causes the government to move in commerce the same as a corporation or person.　 “Whereas, Governments descend to the level of a mere private corporation and take on the characteristics of a mere private citizen . . . And thereby; the “entity” known as the [OREGON STATE POLICE/TROOPERS or other TRAFFIC CONTROL OFFICERS in “this state” cannot compel [unilateral] performance upon nor contract its insolvent statute or rules unless it, like any other corporation or person is the holder-in-due course of some (certifiable) contract or [known] commercial agreement between it and the party upon whom the payment and performance are made and thereby, willing to produce said documents and place the same in evidence before trying to enforce its demands called statutes”.　 For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”Clearfield Trust Co. v United States, 318 U.S. 363, (1943) Bank of United States V. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824)

NOTE: Any form of license is not a contract, but a mere unilateral waiver of a “natural right” to accept to be regulated in commerce and is usually achieved by fraud in the inducement on the part of the state of the forum aka “this state” through its law merchant commissioners masquerading as a judiciary.

LEGISLATURES CANNOT INFRINGE NATURAL RIGHT

Robin v. Hardaway,

1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772) aff’d. Gregory v. Baugh, 29 Va. 681, 29 Va. Rep. Ann. 466, 2 Leigh 665 (1831) (Now all acts of the legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void.The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice. And cited 8 Co. 118. a. Bonham’s case. Hob. 87; 7. Co. 14. a. Calvin’s case.);

Dr. Bonham’s Case,

8 Coke’s Reports 107, at 118 (1610) ([I]n many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such to be void.); aff’d. Robin v. Hardaway,1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772);Tumey v. Ohio, 273 U.S. 510 (1927) 524

The thing speaks for itself {Res ipsa loquitur};

1.Natural Right. . . (Recognized by “this state” as Paramount to the statute and the natural law is controlling) BACKGROUND GOING TO THE PRESUMPTIVE AND FRAUDULENT “UNILATERAL” ENFORCEMENT OF THE WHOLLY ELECTIVE CITATION AFTER THE SOVEREIGNS REFUSAL TO CONTRACT WITH THE AGENT/LAW MERCHANT.

SIMULATING LEGAL PROCESS

ORS 162.355[1971 c.743 s.210; 1997 c.395 s.1] (Simulating legal process) (1) A person commits the crime of simulating legal process if the person knowingly issues or delivers to another person any document that in form and substance falsely simulates civil or criminal process. (2) As used in this section: (a) “Civil or criminal process” means a document or order, including, but not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading or subpoena, that is issued by a court or that is filed or recorded for the purpose of: (A) Exercising jurisdiction; (B) Representing a claim against a person or property; (C) Directing a person to appear before a court or tribunal; or (D) Directing a person to perform or refrain from performing a specified act. (b) “Person” has the meaning given that term in ORS 161.015, except that in relation to a defendant, “person” means a human being, a public or private corporation, an unincorporated association or a partnership. (3) Simulating legal process is a Class C felony.

NATURAL RIGHT IS TO PREVAIL OVER THE STATUTE

1. Where a statute is equally susceptible of two interpretations,one in favor of natural right and the other against it, the former [natural right] is to prevail.

2.Standing. . . (On God’s Land) (Not to be treated as occupying the “airs space above” the land. See: ORS 131.205 to 131.235 below.

3.Omission. . . (Of the implementing regulation dates of the regulatory statute [displayed within brackets], recognizing the statute as a for profit private copy right law and unenforceable absent knowing acceptance and related quid pro quo consideration.)

4.Contract. . . (A Secured Right that Cannot be Infringed). “Contract” is acknowledged as applicable under the Uniform Commercial Code and contract goes first and foremost to full disclosure and the right of choice upon full disclosure at Chapter 71- UCC Section 71.1030.

Oregon Statutes – Chapter 71 – General Provisions for Uniform Commercial Code – Section 71.1030 – Supplementary general principles of law applicable.

Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent,estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. [1961 c.726 §71.1030]

Fraud will not be entertained under the law merchant and thereby, the agent cannot contract the statute by use of Fraud in the Inducement:“… as such fraud is intended to and which does cause one to execute an instrument, or make an agreement… The misrepresentation involved does not mislead one as the paper he signs but rather misleads as to the true facts of a situation, and the false impression it causes is a basis of a decision to sign or render a judgment”. Source: Steven H. Gifis, ‘Law Dictionary’, 5th Edition, Happauge: Barron’s Educational Series, Inc., 2003, s.v.: ‘Fraud’.

This is the point where “this state[s]” statute merchant “agent” “personally” and in his or her “Individual capacity” pervert the process for and to their own advantage . . . but the law is in place to call said “agent” on their fraud and related extortion, as the natural law will prevail.

1. “This state” recognizes the Natural Right to prevail over the statutes of “this state”, as recognized at ORS Chapter 174: Section 174.030 below.

Oregon Statutes – Chapter 174 – Construction of Statutes; General Definitions – Section 174.030 – Construction favoring natural right to prevail.Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former [natural right] is to prevail.

THE CORPORATE STATE EXISTS ONLY IN METAPHYSICAL TERMS

2.”The [de jure] state” acknowledges the Land that you “Stand” on, by addressing that (This [de facto] state, rather than “The state”) exists (APPEARS) in the “airspace” above that land and is not grounded. See: Chapter 131:

ORS 131.205 to 131.235,“this” state” meansthe [fictitious] land and water and the air space abovethe [substantive] Land and Waterwith respect to which “the”State of Oregon[being the land below and on which you are STANDING]has legislative jurisdiction.

Where and How does the Statute Court Acquire Jurisdiction over the Natural Man or Woman?

“This state” through “its” statute courts i.e. civil/admiralty Prize Courts . . . issues “Charges” . . . the charges cannot reach and therefore empower the court until the charges are grounded to complete the (Circuit of that Court). You are on the Ground or the “Grounded” party and if you don’t voluntarily join (go into controversy and respond to the charges), the court is not grounded and has no “power” to move forward . . . As long as you don’t “appear” or stand outside of the BAR, the court is “dis-empowered” to move or issue motion(s) or process . . . the court must be “plugged” into you to LIGHT ITS FICTIONAL FIRE . . . and this is the behind the scenes slight of hand employed to coerce jurisdiction over the natural Man or party . . . such process is held as “Fraud in the Inducement” whereas;

3. “Omission” as noted within the “Government Printing Office Style Manual” (Rules of Style) provides the recognition and distinction between substantive “natural right” and the right of “standing” of the Sovereign Man or Woman and the private copyright law as simply defined in “this state” and as “elective” and thereby coming within the consideration going to the right of “election” to “Contract” or not to “Contract.” (The Government Shall not Infringe the Right of Contract.)

4. “Contract” is acknowledged as applicable under the Uniform Commercial Code and contract goes first and foremost to full disclosure and the right of choice upon full disclosure at Chapter 71:

Oregon Statutes – Chapter 71 – General Provisions for Uniform Commercial Code – Section 71.1030 – Supplementary general principles of law applicable.

Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel,fraud,misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. [1961 c.726 §71.1030]

Fraud will not be entertained under the law merchant and thereby, the agent cannot contract the statute by use of Fraud in the Inducement: “… as such fraud is intended to and which does cause one to execute an instrument, or make an agreement… The misrepresentation involved does not mislead one as the paper he signs but rather misleads as to the true facts of a situation, and the false impression it causes is a basis of a decision to sign or render a judgment”.Source: Steven H. Gifis, ‘Law Dictionary’, 5th Edition, Happauge: Barron’s Educational Series, Inc., 2003, s.v.: ‘Fraud’.

This is the point where “this state[s]” statute merchant “agent” “personally” and in his or her “Individual capacity” pervert the process for and to their own advantage . . . but the law is in place to call said “agent” on their fraud and related extortion, as well as the natural law to wit: “The people, or sovereign are not bound by general words in statutes, restrictive of prerogative right, title or interest, unless expressly named.

Acts of limitation do not bind the King or the people. The people have been ceded all the rights of the King, the former sovereign … It is a maxim of the common law, that when an act is made for the common good and to prevent injury, the King shall be bound, though not named, but when a statute is general and prerogative right would be divested or taken from the King [or the people] he shall not be bound.” — The People v. Herkimer, 4 Cowen (NY) 345, 348 (1825):

PRIVATE FOR PROFIT STATUTES ARE INSOLVENT ABSENT JOINDER

1. Sed vide: The cause of the church is equal to public cause; and paramount is the reason which makes for religion{Causa ecclesiæ publicis æquiparatur; et summa est ratio quæ pro religione facit; Coke, Litt. 341}; The law of God and the law of the land are all one; and both preserve and favor the common and public good of the land {Le ley de dieu et ley de terre sont tout un; et l’un et l’autre preferre et favour le common et publique bien del terre; Keilw. 191}; No man warring for God should be troubled by secular business {Nemo militans Deo implicetur sccularibus negotiis; Coke, Litt. 70}; The thing speaks for itself {Res ipsa loquitur}; A sacrilegious person transcends the cupidity and wickedness of all other robbers {Sacrilegus omnium prædorum cupiditatem et scelerem superat; 4 Coke, 106}; That is the highest law which favors religion {Summa est lex quæ pro religione facit; 10 Mod. 117, 119; 2 Chanc. Cas. 18}; accord,　Fiction yields to truth {Fictio cedit veritati}; We can do nothing against truth {Nihil possumus contra veritatem; St. Albans, Doct. & Stu. Dial. 2, c. 6}; He who does not freely speak the truth is a betrayer of the truth {Qui non libere veritatem pronunciat proditor est veritatis}; Suppression of the truth is (equivalent to) the suggestion of what is false {Suppressio veri, suggestio falsi; 23 Barb. N.Y. 521, 525}; Truth, by whomsoever pronounced, is from God {Veritas, a quocunque dicitur, a Deo est}; A greater or superior force; an irresistible force {Vis major};　and that class of authority, reason, custom and usage ad infinitum:

REMEMBER . . . . ALL AGENTS OF “THIS [corporate] STATE” PROCEED IN THE NATURE OF A “LAW MERCHANT” TO OFFER AND THEREBY “SELL” THE “INSOLVENT” STATUTE . . . THE PRIMARY QUESTION IS: “WHAT IS MY CONSIDERATION SHOULD I ACCEPT YOUR OFFER?” DOESEN’T MY CONSIDERATION HAVE TO BE QUID PRO QUO i.e. VALUE FOR VALUE?

Consider the following:

THE USE OF THE HIGHWAYS IS A MATTER OF RIGHT

Oregon Statutes – Chapter 801 – General Provisions and Definitions for Oregon Vehicle Code

– Section 801.305 – “Highway.”

(1) “Highway” means every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right.

(2) For the purpose of enforcing traffic offenses contained in the Oregon Vehicle Code, except for ORS 810.230, “highway” includes premises open to the public that are owned by a homeowners association and whose boundaries are contained within a service district established on or before July 1, 2002, under ORS 451.410 to 451.610. [1983 c.338 §51; 2007 c.561 §1]

WHEREAS; ORS 801.305 “Highway”. “Highway” means every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of “this state”, open, used or intended for use of the general public for vehicles and vehicular traffic as a matter of [natural] right.” Reference: HB 3445 (2007) “Officers duty at a traffic stop, is to issue a citation and leave.

Assuming that officer had reasonable suspicion that defendant was driving under the influence and that investigatory stop of defendant’s vehicle was valid, subsequent seizure of weapons found in vehicle was illegal, where defendant was detained longer than was reasonable and scope of investigation exceeded reason for stop:….” State of Oregon v. Carl Wayne Johnson, CR 89-0008; CA A62045; 106 Or.App. at 371.

The Fourth Amendment “prohibits” unreasonable detention of private citizens without probable cause that the individual detained has or is about to commit a “crime”. You cannot be compelled to produce identification in a “non criminal” setting. Kolender v. Lawson, 461 U.S. 352 (1983)

A “traffic stop” is an administrative stop if not based upon a “crime”. If your automobile does not display a “DOT Number” indicating that it is “for hire” you cannot be stopped for any “non-criminal” infraction. See generally: United States v. Herrera, No. 05-3057 (10th Cir. April 19, 2006) D C No 04-CR-20023-02-JWL).

And if you don’t hold or possess the OREGON “DRIVER” LICENSE, you have not elected to become a “Customer” of the OREGON DMV and thereby, there is no existing nexus to presume you have waived your “Right to Travel” and thereby converted said right into a commercial regulatory privilege which by its nature fails on its face as a matter of law.

UNITED STATES V. HERRON, 87 U. S. 251 (1873) a maxim of the common law, said Savage, C.J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the King shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the King, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds that the people of the state, being sovereign, have succeeded to the rights of the former sovereign, and that the people of the state are not bound by the general words in the insolvent law.” i.e. the private for profit copyright statute.

Lastly, the Natural Right to Travel:　

“U.S. Courts affirm that Citizens have the right to
travel freely on the public right of way”.

For many years Professionals within the criminal justice System have acted upon the belief that traveling by motor vehicle upon the roadway was a privilege that was gained by a citizen only after approval by their respective state government in the form of the issuance of a permit or license to that Particular individual. Legislators, police officers and court officials are becoming aware that there are now court decisions that prove the fallacy of the legal opinion that” driving is a privilege and therefore requires government approval, i.e. a license”. Some of these cases are:

Case # 1 – “Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. – Chicago Motor Coach v Chicago 169 NE 22
(“Regulated” here means traffic safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission i.e.- licensing, mandatory insurance, vehicle registration, etc.)

Case # 2 – “The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness.”- Thompson v Smith 154 SE 579.

It could not be stated more conclusively that Citizens of the states have a right to travel, without approval or restriction, (license,) and that this right is protected under the U.S. Constitution. Here are other court
decisions that expound the same facts:

Case # 3 – “The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment.” Kent v. Dulles, 357 U.S. 116, 125, (1958)

Case # 4 – “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal Liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution.” – Schactman v Dulles, 225 F.2d 938 (1955)

FUNDAMENTAL RIGHT

As hard as it is for those of us in Law enforcement to believe, there is no room for speculation in these court decisions. The American citizen does indeed have the inalienable right to use the roadways unrestricted in any manner as long as they are not damaging or violating property or rights of another.

Government, in requiring the people to file for “drivers Licenses, vehicle registrations, mandatory insurance, and demanding they stop for vehicle inspections, DUI/DWI roadblocks etc. without question, are “restricting”, and therefore violating, the Peoples common law right to travel.

Is this a new legal interpretation on this subject of the right to travel? Apparently not. The American Citizens and Lawmen Association in conjunction with The U.S. Federal Law Research Center are presently involved in studies in several areas involving questions on constitutional law. One of the many areas under review is the area of “Citizens right to travel.” In an interview a spokesmen stated: “Upon researching this subject over many months, substantial case law has presented itself that completely substantiates the position that the “right to travel unrestricted upon the nations highways” is and has always been a fundamental right of every Citizen.”

This means that the “beliefs and opinions” our state legislators, the courts, and those of as involved in the law enforcement profession have acted upon for years have been in error. Researchers armed with actual facts state that U.S. case law is overwhelming in determining that – to restrict, in any fashion, the movement of the individual American in the free exercise of their right to travel upon the roadways, (excluding “commerce” which the state Legislatures are correct in regulating), is a serious breach of those freedoms secured by the U.S. Constitution, and most state Constitutions, i.e – it is Unlawful.

THE REVELATION THAT THE AMERICAN CITIZEN HAS ALWAYS HAD THE INALIENABLE RIGHT TO TRAVEL RAISES PROFOUND QUESTIONS TO THOSE WHO ARE INVOLVED IN MAKING AND ENFORCING UNDER FRAUD IN THE INDUCEMENT, “INSOLVENT” STATE LAWS FOR PROFIT.

The first of such questions may very well be – If the States have been enforcing laws that are unconstitutional on their face, it would seem that there must be some way that a state can legally put restrictions, such as – licensing requirements, mandatory insurance, vehicle registration, vehicle inspections, D.W.I. roadblocks, to name just a few, on a Citizens constitutionally protected right. Is that not so?

For the answer to this question let us look, once again, to the U.S. courts for a determination on this very issue.

The case of Hurtado v. California, 110 U.S. 516 (1884) states very plainly: “The State cannot diminish rights of the people.”

“the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”-Davis v. Wechsler, 263 U.S. 22,24 (1923)

Would we not say that these judicial decisions are straight to the point – that there is no lawful method for government to put restrictions or Limitations on rights belonging to the people?

Other cases are even more straight forward:

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” –Miranda v. Arizona, 384 U.S. 436, 439 (1966 )

“The claim and exercise of a constitutional right cannot be converted into a crime.· –Miller v. U.S., 230 F.2d 486, 489

“There can be no sanction or penalty imposed upon one because of this exercise of Constitutional rights.”-Sherar v. Cullen, 481 F.2d 945 ( There is no question that a citation/ticket issued by a police officer, for no drivers license, no current vehicle registration, no vehicle insurance etc. which carries a fine or jail time, is a penalty or sanction, and is indeed “converting a Right into a crime”.)

We could go on, quoting court decision after court decision, however, In addition, the Constitution itself answers our question- “Can a government legally put restrictions on the rights of the American people at anytime, for any reason”? (Such as in this particular case – when the government believes it to be for the safety and welfare of the people).

The answer is found in ARTICLE SIX of the U.S. Constitution:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding”. (This tells us that the U.S. Constitution is to be upheld over any state, county, or city Laws that are in opposition to it.)

In the same Article it goes on to say just who it is within our governments that is bound by this Supreme Law:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;”. – ART. 6 U.S. CONST.

We know that Police officers, are a part of the Executive branch. We are “Executive Officers”.

Article 6 above, is called the SUPREMACY CLAUSE, and it clearly states that, under every circumstance, the above listed officials in these United States must hold this documents tenets supreme over any other laws, regulations, or orders. Every U.S. Police officer knows that they have sworn a oath to the people of our nation that we will not only protect their lives and property, but, that we will uphold, and protect their freedoms and rights under the Supreme laws of this nation, – the U. S. Constitution.

In this regard then, we must agree that those within government that restrict a Citizens rights, (such as restricting the people’s right to travel,) are acting in violation of his or her oath of office and are actually committing a crime against such Citizens. Here’s an interesting question. Is ignorance of these laws an excuse for such acts by officials? If we are to follow the “letter of the law (as we are sworn to do), this places officials that involve themselves in such unlawful acts in an unfavorable legal situation. For it is a felony and federal crime to violate, or deprive citizens of their constitutionally protected rights.

Our system of law dictates the fact that there are only two ways to legally remove a right belonging to the people. These are – #1 – by lawfully amending the constitution, or #2 – by a person knowingly waiving a particular right.

Some of the confusion in our present system has arisen because many millions of people have waived their right to travel “unrestricted” upon the roadways of the states and opted into the jurisdiction of the state for various reasons. Those who have knowingly given up these rights are now legally regulated by state law, the proper courts, and “sworn, constitutionally empowered officers-of-the-law,” and must acquire proper permits, registrations, insurance, etc.

There are basically two groups of people in this category:

#1 – Any citizen that involves themselves in “commerce,” (business for private gain), upon the highways of the state.

Here is what the courts have said about this:

“…For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person has a vested right to use the highways of the state, but is a privilege or license which the legislature may grant or withhold at its discretion…” – State v Johnson, 243 P. 1073, 1078.

Other U.S. court cases that confirm and point out the difference between the “right” of the citizen to travel and a government “privilege” are – Barney v Board of Railroad Commissioners; State v City of Spokane, 186 P. 864.; Ex Parte Dickey (Dickey v Davis), 85 S.E. 781.; Teche Lines v Danforth, 12
So.2d 784.

There are numerous other court decisions that spell out the JURISDICTION issue in these two distinctly different activities. However, because of space restrictions we will leave it up to officers to research it further for themselves. (See last page for additional references).

#2 – The second group of citizens that are legally under the jurisdiction of the state is the individual citizen who has voluntarily and knowingly waived their right to travel “unregulated and unrestricted” by requesting placement under such jurisdiction through the acquisition of a state – drivers license, vehicle registration, mandatory insurance, etc. (In other words “by contract only”.)

We should remember what makes this “legal,” and not a violation of the individual’s common law right to travel “unrestricted” is that they knowingly volunteer, freely, by contract, to waive their right. If they were forced, coerced or unknowingly placed under the States powers, the courts have said it is a clear violation of their rights.

This in itself raises a very interesting question. What percentage of the people in each state have filed, and received, licenses, registrations, insurance etc. after erroneously being advised by their government that it was mandatory?

Many of our courts, attorneys and police officials are just becoming informed about this important issue and the difference between “Privileges vs. Rights”. We can assume that the majority of those Americans carrying state licenses, vehicle registrations etc., have no knowledge of the rights they waived in obeying laws such as these that the U.S. Constitution clearly states are unlawful, i.e. “laws [that are insolvent], are of no effect”. In other words – “LAWS THAT ARE NOT LAWS AT ALL.”

OUR SWORN DUTY

An area of serious consideration for every police officer, is to understand that the most important law in our land he has taken an oath to protect, defend, AND ENFORCE, is not state laws, nor city or county ordinances, but, that law that supercede all other laws in our nation, – the U.S. Constitution. If laws in a particular police officer’s state, or local community are in conflict with the SUPREME LAW of our nation, there Is no question that the officer’s duty is to “uphold the U.S. Constitution.”

What does this mean to the “patrol officer” who will be the only sworn “Executive Officer” on the scene, when knowledgeable Citizens raise serious objections over possession of insurance, drivers licenses and other restrictions? It definitely means these officers will be faced with a hard decision. (Most certainly if that decision affects state, city or county revenues, such as the issuing of citations do.)

Example: If a state legislator, judge or a superior tells a police officer to proceed and enforce a contradictory, (illegal), state law rather than the Supreme Law of this country, what is that “sworn officer” to do? Although we may not want to hear it, there is but one right answer, – “the officer is duty bound to uphold his oath of office” and obey the highest laws of the nation. THIS IS OUR SWORN DUTY AND IT’S THE LAW!

Such a strong honest stand taken by a police officer, upholding his or her oath of office, takes moral strength of character. It will, without question, “SEPARATE THE MEN FROM THE BOYS.” Such honest and straight forward decisions on behalf of a government official have often caused pressure to be applied to force such officers to set aside, or compromise their morals or convictions.

As a solace for those brave souls in uniform that will stand up for law and justice, even when it’s unpopular, or uncomfortable to do so…let me say this. In any legal stand-off over a sworn official “violating” or “upholding” their oath of office, those that would side with the “violation” should inevitable lose.

Our Founding Fathers assured us, on many occasions, the following: Defending our freedoms in the face of people that would for “expedients sake,” or behind the guise, “for the safety and welfare of the masses,” ignore people’s rights, would forever demand sacrifice and vigilance from those that desired to remain free. That sounds a little like – “Freedom is not free!”

Every police officer should keep the following U.S. court ruling in mind that was covered earlier, before issuing citations in regard to presumptive “mandatory licensing, registration and insurance” – verses – “the right of the people to travel unencumbered”:

“THE CLAlM AND EXERCISE OF A CONSTITUTIONALLY [SECURED] RlGHT CANNOT BE CONVERTED INTO A CRIME.” –Miller v. U.S., 230 F.2d 486, 489

And as we have seen, “traveling freely,” going about ones daily activities, is the exercise of a most basic right.

UNITED STATES V. HERRON, 87 U. S. 251 (1873) It is a maxim of the common law, said Savage, C.J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the King shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the King, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds that the people of the state, being sovereign, have succeeded to the rights of the former sovereign, and that the people of the state are not bound by the general words in the insolvent law.

Aid&Abet Newsletter Mon, 03 Feb 2003 14:09:19 -0600
P.O.BOX 8787, PHOENIX, ARIZONA 85066

CLARIFICATON:

The courts state that a Citizen has an unalienable right to travel freely. This includes the right to travel freely for one’s own private need and enjoyment in an automobile on the public right of way. However, the term “motor vehicle” has a special meaning in the law, as does the term “driving”. “Motor vehicles” are self-propelled devices used for “transport of persons and/or property on the highway”. “Transport” means to move something in commerce. “Driving” is the act of controlling a “motor vehicle”. All of these terms relate to specifically defined commercial use of the public right of way, and commercial use of publicly maintained property is not a right, but a privilege that can be taxed through licensure and registration.

Note also:

The registration of the vehicle at the time of purchase is accomplished by way of “fraud in the inducement,” “Actual Fraud” and Theft by Deception, whereby the “certificate of origin” of the vehicle in question is caused to be surrendered to the DMV, presuming to transfer legal title to said DMV, when in fact, the DMV has given no value for said vehicle. In essence, evidence of registration is an admission of the above criminal acts to defraud and claim control of property that the DMV has no commercially vested interest in except by way of constructive fraud.

“Every commercial law and every regulation is a price-fix of sorts and generates – for some service or some product – a queue, a shortage or a forcible redistribution of resources and must by its nature indemnify the actor/customer.” (But requires knowing “Joinder” by you! Never go into controversy . . . that is by deception, considered a traverse and joinder! (a presumptive knowing grant of jurisdiction.)

The bottom line is biblical re the corporation and other fictional entities:

“Wherefore come out from among them, and be ye separate, saith the Lord, and touch not the unclean [thing]; and I will receive you . . “

2 Corinthians 6:17

 THE FOLLOWING PAGE BELOW ALSO HAVE A PLETHORA OF SUPREME COURT RULINGSON THIS GOD GIVEN RIGHTS, SEARCH AND PROPERTY RIGHTS BELOW

NO Law requires you to record / pledge your private automobile

Supreme court cases from digging around Robin v. Hardaway 1790

cited https://keystoliberty2.wordpress.com/2012/01/03/statutes-attempting-to-sell-the-statute-part-2/

NO Law requires you to record / pledge your private automobile 24 pages of rulings supporting your rights

Government / Public Servants / Officers / Judges Not Immune from suit!

NO Law requires you to record / pledge your private automobile

As will be made painfully evident herewithin, a Private automobile is not required by any law, code or statute to be recorded. Any recording (pledge) of Private automobile to any agency is strictly voluntary. Any recordation / contract you or a Dealership has done was a fraudulently conveyed act as the recording agency/automobile Dealer told you that you must record your Private Property. The voluntary pledge that was done without just compensation is usually done through fraud, deceit, coercion and withholding of facts, which can only be construed as fraud and unjust enrichment by agency as well as a willful malicious act to unjustly enrich the recording agency and its public servants.

If men, through fear, fraud or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave. Samuel Adams, our great president.

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.”  Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

But whenever the operation and effect of any general regulation is to extinguish or destroy that which by law of the land is the property of any person, so far as it has that effect, it is unconstitutional and void.  Thus, a  law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts its common, necessary, or profitable use, hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it and thereby seriously impairs its value.  (Statute) 167 Am. Jur. 2d, Constitutional Law, Section 369.

Justice  Bandeis  eloquently  affirmed  his  condemnation  of  abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of  Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared:

“Decency,  security,  and  liberty  alike  demand  that Government officials shall be subjected to the same rules of  conduct  that  are  commands  to  the  Citizen.  In  a Government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.”

The Duty of the Licensor / DMV Commissioner

The information created and surrounding the stricti juris doctrine regarding a particular license which may, or may not, be represented by and revealed within the contents and control of a license agreement

— “but must be revealed upon demand, and failure to do so is

concealment,  a  withholding  of  material  facts  (the  enducing, contractual  consideration) known by those who have a duty and are bound to reveal.”  Dolcater  v.  Manufacturers & Traders Trust Co., D.C.N.Y., 2F.Supp. 637, 641.

Is an automobile always a vehicle (or motor vehicle)?

ARGUMENT:

Federal;

“‘‘Motor vehicle’’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in transportation of passengers, passengers and property, or property and cargo; … “Used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit[.]” 18 U.S.C. 31.

“A carriage is peculiarly a family or household article.  It contributes in a large degree to the health, convenience, comfort, and welfare of the householder or of the family.” Arthur v Morgan, 113 U.S. 495, 500, 5 S.Ct. 241, 243 S.D. NY 1884).

“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.Ed.  825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 F. 163, 164 (2nd Cir. 1907).

“A soldier’s personal automobile is part of his “household goods[.]”   U.S. v Bomar, C.A.5(Tex.), 8 F.3d 226, 235″  19A Words and Phrases – Permanent Edition (West) pocket part 94.

“[I]t is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.2d 1317, 1324 (5th Cir. 1983).

State:

Use determines classification

“In determining whether or not a motor boat was included in the expression household effects, Matter of Winburn’s Will, supra [139 Misc. 5, 247 N.Y.S. 592], stated the test to be “whether the articles are or are not used in or by the household, or for the benefit or comfort of the family”.”   In re Bloomingdale’s Estate, 142 N.Y.S.2d 781, 785 (1955).

“The use to which an item is put, rather than its physical characteristics, determine whether it should be classified as “consumer goods” under UCC 9-109(1) or   “equipment” under UCC 9-109(2).”    Grimes v Massey Ferguson, Inc., 23 UCC Rep Serv 655; 355 So.2d 338 (Ala., 1978).

“Under UCC 9-109 there is a real distinction between goods purchased for personal use and those purchased for business use.  The two are mutually exclusive and the principal use to which the property is put should be considered as determinative.”   James Talcott, Inc. v Gee, 5 UCC Rep Serv 1028; 266 Cal.App.2d 384, 72 Cal.Rptr. 168 (1968).

“The classification of goods in UCC 9-109 are mutually exclusive.”   McFadden v Mercantile-Safe Deposit & Trust Co., 8 UCC Rep Serv 766; 260 Md 601, 273 A.2d 198 (1971).

“The classification of “goods” under [UCC] 9-109 is a question of fact.” Morgan County Feeders, Inc. v McCormick, 18 UCC Rep Serv 2d 632; 836 P.2d 1051 (Colo. App., 1992).

“The definition of “goods” includes an automobile.”   Henson v Government Employees Finance & Industrial Loan Corp., 15 UCC Rep Serv 1137; 257 Ark 273,516 S.W.2d 1 (1974).

Household goods

“The term “household goods” … includes everything about the house that is usually held and enjoyed therewith and that tends to the comfort and accommodation of the household.  Lawwill v. Lawwill, 515 P.2d 900, 903, 21 Ariz.App. 75” 19A Words and Phrases – Permanent Edition (West) pocket part Cites Mitchell’s Will below.

“Bequest … of such “household goods and effects” … included not only household furniture, but everything else in the house that is usually held and used by the occupants of a house to lead to the comfort and accommodation of the household. State ex rel. Mueller v Probate Court of Ramsey County, 32 N.W.2d 863, 867, 226 Minn. 346.” 19A Words and Phrases – Permanent Edition (West) 514.

“All household goods owned by the user thereof and used solely for noncommercial purposes shall be exempt from taxation, and such person entitled to such exemption shall not be required to take any affirmative action to receive the benefit from such exemption.”  Ariz. Const. Art. 9, 2.

Automobiles classified as vehicles

““[H]ousehold goods”…did not [include] an automobile…used by the testator, who was a practicing physician, in going from his residence to his office and vice versa, and in making visits to his patients.”  Mathis v Causey, et al., 159 S.E. 240 (Ga. 1931).

“Debtors could not avoid lien on motor vehicle, as motor vehicles are not “household goods” within the meaning of Bankruptcy Code lien avoidance provision.  In re Martinez, Bkrtcy.N.M., 22 B.R. 7, 8.”  19A Words and Phrases – Permanent Edition (West) pocket part 94.

Automobiles NOT classified as vehicles

“Automobile purchased for the purpose of transporting buyer to and from his place of employment was “consumer goods” as defined in UCC 9-109.” Mallicoat v Volunteer Finance & Loan Corp., 3 UCC Rep Serv 1035; 415 S.W.2d 347 (Tenn. App., 1966).

“The provisions of UCC 2-316 of the Maryland UCC do not apply to sales of consumer goods (a term which includes automobiles, whether new or used, that are bought primarily for personal, family, or household use).” Maryland Independent Automobile Dealers Assoc., Inc. v Administrator, Motor Vehicle Admin., 25 UCC Rep Serv 699; 394 A.2d 820, 41 Md App 7 (1978).

“An automobile was part of testatrix’ “household goods” within codicil.  In re Mitchell’s Will, 38 N.Y.S.2d 673, 674, 675 [1942].”  19A Words and Phrases – Permanent Edition (West) 512.  Cites Arthur v Morgan, supra.  “[T]he expression “personal effects” clearly includes an automobile[.]”  In re Burnside’s Will, 59 N.Y.S.2d 829, 831 (1945).  Cites Hillhouse, Arthur, and Mitchell’s Will, supra.  “[A] yacht and six automobiles were “personal belongings” and “household effects[.]””    In re Bloomingdale’s Estate, 142 N.Y.S.2d 781, 782 (1955).

CONCLUSION

Is an automobile always a vehicle (or motor vehicle)?  No.  This is a question of fact that turns on the use to which the automobile in question is put (i.e., either personal or commercial).  While the presumption of an automobile being a vehicle (or motor vehicle) is created by the owner of said automobile registering same with the state as a vehicle, this presumption may be overcome by an affirmative defense to the allegation of the automobile being a vehicle, baring any evidence to the contrary indicating commercial use.

Use defines Classification

Private Automobile is NOT required to be registered by Law The California Motor Vehicle Code, section 260: Private cars/vans etc. not in commerce / for profit, are immune to registration fees:

(a) A “commercial vehicle” is a vehicle of a type REQUIRED to be REGISTERED under this code”.

(b) “Passenger vehicles which are not used for the transportation of persons for hire, compensation or profit, and housecars, are not commercial vehicles”.

(c) “a vanpool vehicle is not a commercial vehicle.”

and; “A vehicle not used for commercial activity is a “consumer goods”, …it is NOT a type of vehicle required to be registered and “use tax” paid of which the tab is evidence of receipt of the tax.”  Bank of Boston vs Jones, 4 UCC Rep. Serv. 1021, 236 A2d 484, UCC PP 9-109.14.  And;  “It is held that a tax upon common carriers by motor vehicles is based upon a reasonable classification, and does not involve any unconstitutional discrimination, although it does not apply to private vehicles, or those used by the owner in his own business, and not for hire.”  Desser v. Wichita, (1915) 96 Kan. 820; Iowa Motor Vehicle Asso. v. Railroad Comrs., 75 A.L.R. 22.

“Thus self-driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled.”  Ex Parte Hoffert, 148 NW 20.  And; “In view of this rule a statutory provision that the supervising officials “may” exempt such persons when the transportation is not on a commercial basis means that they “must” exempt them.”   State v. Johnson, 243 P. 1073; 60 C.J.S. section 94 page 581.

See New Jersey Motor Vehicle Code Chapter 3, Section 39:3-1.  Certain vehicles excepted from chapter which reads: “Automobile, fire engines and such self propelling vehicles as are used neither for the conveyance of persons for hire, pleasure or business, nor for the transportation of freights, such as steam road rollers and traction engines are excepted from the provisions of this chapter.”

See Annual Report of the Attorney General of the State of New York issued on July 21, 1909, ALBANY NEW YORK, pages 322-323 which reads: “There is NO requirement that the owner of a motor vehicle shall procure a license to run the same, nor is there any requirement that any other person shall do so, unless he proposes to become a chauffeur or a person conducting an automobile as an employee for hire or wages. Yours very truly, EDWARD R. O’MALLEY Attorney General.

See Laws of New York 1901, Chapter 53, page 1316, Section 169a.

See also Laws of Wyoming 2002, Motor Vehicle Code, page 142, Section 31-5- See RCW 5.24.010!

“Privately owned Buses not engaged in for hire Transportation are outside the jurisdiction of Division of Motor Vehicles enforcement of N.C. G.S. Article 17, Chapter 20***” 58 N.C.A.G. 1 (It follows that those Citizens not engaged in extraordinary use of the highway for profit or gain are likewise outside the jurisdiction of the Division of Motor Vehicles.)

“Since a sale of personal property is not required to be evidenced by any written instrument in order to be valid, it has been held in North Carolina that there may be a transfer of title to an automobile without complying with the registration statute which requires a transfer and delivery of a certificate of title.”  N.C. Law Review Vol. 32 page 545, Carolina Discount Corp. v. Landis Motor Co., 190 N.C. 157.

“The following shall be exempt from the requirements of registration and the certificate of title:
        1.) Any such vehicle driven or moved upon the highway in conformance with the provisions of this Article relating to manufacturers, dealers, or nonresidents.”
        2.) Any such vehicle which is driven or moved upon a highway only for the purpose of crossing such highway from one property to another. ****20-51(1)(2) (comment: not driven or moved
upon the highway for transporting persons or property for profit.) (Case note to North Carolina G.S. 12-3 “Statutory Construction”)

The California Constitution in Article I, Section 8 (and similar statements made in all other state constitutions), mandates that no one “be compelled to be a witness against himself,” is in agreement with the Supreme Court ruling in Haynes v. U.S., 390 U.S. 85, 88 S.Ct. 722, wherein the ruling was that to force anyone to register anything is communicative, and such communicative evidence is precluded by the 5th Amendment.

“No State government entity has the power to allow or deny passage on the highways, byways, nor waterways… transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring, licensing, vehicle registration, or forced insurances.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22.

The fundamental Right to travel is NOT a Privilege, it’s a gift granted by your Maker, and restated by our founding fathers as Unalienable and cannot be taken by any Man / Government made Law or color of law known as a private Code (secret) or a Statute,

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.”  In Re Newman (1858), 9 C. 502.

“Traveling is passing from place to place–act of performing journey; and traveler is person who travels.”  In Re Archy (1858), 9 C. 47.

“Right of transit through each state, with every species of property known to constitution of United States, and recognized by that paramount law, is secured by that instrument to each citizen, and does not depend upon uncertain and changeable ground of mere comity.”  In Re Archy (1858), 9 C. 47.

“Traffic infractions are not a crime.” People v. Battle, 50 Cal. App. 3, step 1, Super, 123 Cal. Rptr. 636, 639.

“First, it is well established law that the highways of the state are public property, and their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it sees fit.”  Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140, and cases cited; Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290; Parlett Cooperative vs. Tidewater Lines,  164 A. 313.

Freedom to travel is, indeed, an important aspect of the citizen’s “liberty“.  We are first concerned with the extent, if any, to which Congress has authorized its curtailment. (Road)  Kent v. Dulles, 357 U.S. 116, 127.

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the solicitor general.  In Anglo Saxon law that right was emerging at least as early as Magna Carta.  Kent v. Dulles, 357 U.S. 116, 125.

“The use of the highway for the purpose of travel and transportation is not a mere privilege but a common and fundamental right of which the public and individuals cannot rightfully be deprived.”

Chicago

Motor Coach v. Chicago, 337 Ill. 200, 169 NE 22, 66 ALR 834. Ligare Chicago, 139 Ill. 46, 28 NE 934. Boone v. Clark, 214 SW 607; 25 AM JUR (1st) Highways, Sec. 163. “The right of the citizen to travel upon the public highways and to transport his property thereon, either by a carriage or automobile, is not a mere privilege which a City may prohibit or permit at will, but a common right which he has under the right to Life, Liberty and the Pursuit of Happiness.” Thompson v. Smith 154 SE 579.

“Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with public interest and convenience.  Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22, 206.

“… It is now universally recognized that the state does possess such power [to impose such burdens and limitations upon private carriers when using the public highways for the transaction of their business] with respect to common carriers using the public highways for the transaction of their business in the transportation of persons or property for hire.  That rule is stated as follows by the supreme court of the United States: ‘A citizen may have, under the fourteenth amendment, the right to travel and transport his property upon them (the public highways) by auto vehicle, but he has no right to make the highways his place of business by using them as a common carrier for hire.    Such use is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause.’  (Buck v. Kuykendall, 267 U. S. 307 [38 A. L. R. 286, 69 L. Ed. 623, 45 Sup. Ct. Rep. 324].)

“The right of a citizen to travel upon the highway and transport his property thereon in the ordinary course of life and business differs radically an obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus.  The former is the usual and ordinary right of a citizen, a right common to all; while the latter is special, unusual and extraordinary.  As to the former, the extent of legislative power is that of regulation; but as to the latter its power is broader; the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature.  This distinction, elementary and fundamental in character, is recognized by all the authorities.”

In   Thompson v. Smith, Chief of Police. Supreme Court of Appeals of Virginia. 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604. Sept. 12, 1930 it states:

Constitutional law:  Citizen’s right to travel upon public highways and transport his property thereon in ordinary course of life and business is common right.  The right of a citizen so to do is that which he has under his right to enjoy life and liberty, to acquire property, and to pursue happiness and safety.

Automobiles, Highways:     Citizen’s right to travel upon public highways includes right to use usual conveyances of time, including horse-drawn carriage, or automobile, for ordinary purposes of life and business.

Injunction:   Injunction lies against enforcement of void statute or ordinance, where legal remedy is not as complete or adequate as injunction, or where threatened or attempted enforcement will do irreparable injury to person in interfering with exercise of common fundamental personal right.  By “irreparable injury” is meant an injury of such a nature that fair and reasonable redress may not be had in a court of law and that to refuse the injunction would be a denial of justice.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

License Not Legally Required to Travel – 72 hr. Right of Rescission – No License Excuse, provided you have a passport handy – read here

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7.  If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional.  Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …,  it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured…  and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“.  As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury.  You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970);  U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co.  v.  Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950.  and;  “Party cannot be bound by contract that he has not made or authorized.”  Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

And therefore; “Failure to reveal the material facts of a license or any agreement is immediate grounds for estoppel.”  Lo Bue v. Porazzo, 48 Cal.App.2d 82, 119, p.2d 346, 348.

The fraudulently “presumed” quasi-contractus that binds the Declarant with the CITY/STATE agency, is void for fraud ab initio, since the de facto CITY/STATE cannot produce the material fact (consideration inducement) or the jurisdictional clause (who is subject to said statute).  (SEE:  Master / Servant [Employee] Relationship — C.J.S.)  — “Personal, Private, Liberty”-

Since the “consideration” is the “life blood” of any agreement or quasi-agreement, (contractus) “…the absence of such from the record is a major manifestation of want of jurisdiction, since without evidence of consideration there can be no presumption of even a quasi-contractus.   Such is the importance of a “consideration.”  Reading R.R. Co.  v.  Johnson, 7 W & S (Pa.) 317

So without a Contract (no recording of the M.C.O.) or consideration there is no DMV / government etc. jurisdiction as the property does not “reside” in the colorable fictitious territory as evidenced in Supreme Court cite below:

In Wheeling Steel Corp v. Fox , 298 U.S. 193 (1936) it states:  Property taxes can be on tangibles or intangibles.   In order to have a  situs for taxation (a basis for imposing the tax), tangible property (physical property) must reside within the territorial jurisdiction of the taxing authority, and intangibles…

Under USC Title 42 §1982. Property rights of citizens …, further evidences the above position that the City or State cannot take land because they DO NOT have Jurisdiction.                         It states that federal or state governments / agencies MUST have a monetary or proprietary interest in your real private property in order to have jurisdiction over it (if your land has no government grant/funding or is not a subsidized government project, then agencies have neither).                         DEMAND any public servant/said agencies to provide the legal document that allows any federal or state agency to supersede and/or bypass Title 42 USC §1982 and/or §1441.   Title 42 §1983. Civil action for deprivation of rights …, further  protects Declarant’s private property.

The State cannot diminish rights of the people.  Hurtado v. California, 110 U.S. 516.

“To say that one may not defend his own property is usurpation of power by legislature.”  O’Connell v. Judnich (1925), 71 C.A.386, 235 664.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

“… THE POWER TO TAX INVOLVES THE POWER TO DESTROY”.  McCULLOUGH v MARYLAND, 4 Wheat 316.

“All subjects over which the sovereign power of the state extends are objects of taxation, but those over which it does not extend are exempt from taxation. This proposition may almost be pronounced as self-evident.  The sovereignty of the state extends to everything which exists by its authority or its permission.” McCullough v Maryland, 17 U.S. [4 Wheat] 316 (1819).

To be that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of  common law, would not be the law of the land. (Jury) Hoke v. Henderson, 15, N.C. 15 25 AM Dec 677.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.”  Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the  common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system;  but it is commonly used as the designation of a court of  special,  limited, or  statutory jurisdiction, whose  record must show the  existence and  attaching of jurisdiction in any given case, in order to give  presumptive validity to its  judgment.  In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.”   Nestor  v.  Hershey,  425 F2d 504.

Void Judgment –  “One which has no legal force or effect, invality of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.   Reynolds   v.Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.

Voidable Judgment – “One apparently valid, but in truth wanting in some material respect.”  City of Lufkin v. McVicker, Tex.Civ.App., 510 S.W. 2d 141, 144.

Property MUST be devoted / pledged to the public with your consent and being fully compensated for such

“… In one of the so-called elevator cases, that of Munn v. Illinois, 94 U. S. 113, [24 L. Ed. 77], it is said: ‘When, therefore, one devotes his property to a use in which the public have an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.’  But so long as he uses his property for private use, and in the absence of devoting it to public use, the public has no interest therein which entitles it to a voice in its control.  Other case to the same effect are Budd v. New York, 143 U. S. 517, [36 L. Ed. 247, 12 Sup. Ct. Rep. 468];  Weems Steamboat Co. v. People‘s Co., 214 U. S. 345, [16 Ann. Cas. 1222, 53 L. Ed. 1024, 29 Sup. Ct. Rep. 661]; Monongahela Nav. Co. v. United States, 148 U. S. 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]; and Del Mar Water Co. v. Eshleman, 167 Cal. 666, [140 Pac. 591, 948].  Indeed, our attention is directed to no authority in this state or elsewhere holding otherwise.” Associated etc. Co. v. Railroad Commission  (1917) 176 Cal. 518, 526.

“… That subjecting petitioners’ property to the use of the public as common carriers constitutes a taking of the same, admits of no controversy.  ‘Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. … It is not necessary, in order to render the statute obnoxious to the restraints of the constitution, that it must in terms or effect authorize the actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.’  (Forster v. Scott,136 N. Y. 577, [18 L. R. A. 543, 32 N. E. 976]; Monongahela Nav.Co. v. United States, 148 U. S. 312, 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]. … Mr. Lewis in his work on Eminent Domain, third edition, section 11, says: ‘A law which authorizes the taking of private property without compensation, … cannot be considered as due process of law in a free government.’  (Chicago etc, R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581].” Associated Co. v. Railroad Commission (1917) 176 Cal. 518, 528-530.

It is beyond the power of a State by legislation fiat to convert property used exclusively in the business of a private carrier, into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation which no State can do consistently with the due process of law clause of the 14th Amendment.  (See police power) Producers Transportation Co. v. RR Commission, 251 U.S. 228, 230; Wolff Co. v. Duke, 266 U.S. 570, 578.

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over.  Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department.  Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92;  Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles (1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”                                Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee.  Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.  Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives.  Not one of them has a right to ignore or disregard these mandates…”  John F. Jelko Co. vs. Emery, 193 Wisc. 311;  214 N.W. 369, 53 A.L.R., 463;   Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

The People are the Sovereign!

People are supreme, not the state.  Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people.      State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.  And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.”  Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Private Corporate State / Municipality Policy Enforcement Officer
  a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace.  Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution.  Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167.         (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.”    Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536.  (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60;  Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

•   Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

* NO ID . ID requirments – no crime no need, innocent free man

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

When officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment… The Fourth Amendment, of course, applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest… Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person, and the Fourth Amendment requires that the seizure be ‘reasonable’.  *  “But even assuming that purpose (prevention of crime) is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.”

“The application of…(a code)…to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged, or had engaged, in criminal conduct.   Accordingly, appellant may not be

NO ID – Punished for refusing to identify himself, and the conviction is reversed.”  (Probable cause)  Brown v. Texas, 443 U.S. 47, (1979)

* “Traffic infractions are not a crime.” People v. Battle

“To this end, the Fourth Amendment requires that a seizure must be based on specific objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.”  Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights.      “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.”   (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In  Land  v.  Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.”  Brady  v.  Roosevelt, 317 US 575 (1943);  FHA  v.  Burr, 309 US 242 (1940);  Kiefer  v.  RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared,  that  “…where  any  state  proceeds  against  a  private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.”  Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When  enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662;  Bothke  v.  Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved  agency  —  but  only  in  a  “ministerial”  and  not  a “discretionary capacity…”  Thompson  v.  Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction.  Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160;  Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief.  “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

42 U.S. Code § 1983 – Civil action for deprivation of rights – read here

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof – click here to learn requirements

California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

AT LAST

“But, in fact and in law, such statutes are intended to be applied to those who are here as “residents” in this State under the Interstate Commerce Clause of the Federal Constitution and the so- called Fourteenth Amendment.”  United States v United Mine Workers ofAmerica, (1947) 67 S.Ct. 677, 686, 330 U.S. 258.

Notice to all whom these presents may come:

“If I am here at all I am so as a man; I am NOT here as a resident of any State (Nation), nor am I of or “in this state”, nor am I a [statutory] “citizen of the United States” (in Congress assembled) as ALL are fictions/creations of government and therefore and as such no statutes apply to Me as evidenced in above cases. I am a Creature of Nature (the Creator) and therefore I am a transient foreigner by Nature while traveling through Life I am here as a in intinere, as a neutral, for a short time, on my way to the greater beyond, a steward of my father’s land and wishes. My documents of “in intinere” standing are recorded for all to see.” See:  Dred Scott v. Sanford, 60 US (19 How.) 393, 595 (1857) Justice Curtis, S.Ct.

Notice of Full Faith and Credit

We understand America has gone into LEFT FIELD…. DON’T WORRY the RIGHT WAY…. WILL ALWAY BE RIGHT NEVER WRONG, AND WE KEEP A COPY OF THE CONSTITUION IN CASE SOMEONE NEEDS TO SEE THE RIGHT WAY OUR FOREFATHERS SET FORTH TO ENSURE YOU WOULD HAVE RIGHTS, ITS OUR DUTY AS CITIZENS TO STUDY OUR LAWS AND REBUKE THE ONES THAT GO AGAINST GOD OR THE CONSTITUTION  click here to read the whole US Constitution with the Bill of Rights  all the amendments to the US constitution are listed here

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey.  1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

• – Article 1 of the Bill of Rights – guarantees freedom of religion-
  Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Note: Emphasis added to cites, mine!

cited https://famguardian.org/Subjects/Freedom/Rights/Travel/no-law-requires-you-to-record-pledge-your-private-automobile1.pdf or download it here

 THE FOLLOWING PAGE BELOW ALSO HAVE A PLETHORA OF SUPREME COURT RULINGSON THIS GOD GIVEN RIGHTS, SEARCH AND PROPERTY RIGHTS BELOW

Statutes (Attempting To Sell The Statute) part 2

Supreme court cases from digging around Robin v. Hardaway 1790

cited https://goodshepherdmedia.net/wp-content/uploads/2022/12/no-law-requires-you-to-record-pledge-your-private-automobile1.pdf