Today, I was thinking about the Fifth Amendment. The Takings Clause. It’s a clause that doesn’t normally get a lot of play. Recently, we’ve been hearing about it in cases involving oil and natural gas pipelines we no longer need and, of course, over a border wall on sovereign Texas soil that is never going to be built.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (emphasis added)

Not a terribly difficult clause to understand. If the government has a legitimate public “use” (now “purpose”; see Kelo v. City of New London, 545 U.S. 469 (2005) for a decision I imagine the Supreme Court would now like to take back) for privately held property it must offer to the owner in exchange for the land just compensation. Modernly, “just compensation” usually means fair market value. Other words we hear in connection with the Takings Clause are eminent domain and/or condemnation.

I started to ask myself a simple, theoretical question. Why did the Founding Fathers put a clause limiting government acquisition of private property at the end of an Amendment mostly recognized for its effect on government conduct and individual rights in connection with criminal trials? Followed by the Due Process Clause? Life, liberty and oh, there it is. Property. Property standing in for the Pursuit of Happiness. So there you have it. Happiness is dirt. The ownership of dirt. It’s all about the dirt. Is that really so crazy? Let’s expand our horizons.

The right to own, work and profit from the land. To own the entirety of the natural bounty of riches available from the ownership of Earth. At common law, to own land was to own the sky above, and the riches below, if any. Infra Coelum supra infernum.

Land meant water and water meant (and still means) life. So you got the agua standing, or running through, above and below, too. You got the grass and the trees. Plant crops, eat them or sell them. All considered part of the rights inherent in real estate. You could put up a fence and raise animals. You could build a home and raise a family. There were no federal taxes for individuals to pay, so the chances of interacting with your federal government were few and far between. Until the late 1800s America was an agrarian nation of happy, contented farmers. Except for the various incurable illnesses, viruses and plagues, lack of proper medical care in general, and the promise of a fairly short lifespan, and if you were a woman, a very good chance you would die during childbirth, life was good. What changed? Commodities.

With the discovery of gold came the various gold rushes, the most famous being the discovery of gold at Fort Sutter and the California Gold Rush of 1849. Then in 1859, oil was discovered at Oil Creek Pennsylvania. A frenzied oil rush shortly followed. All of a sudden came trains and planes and, well, not automobiles just yet, and all of a sudden “heaven to hell” started giving way to the realities of industrialization and, greed.
“The meek shall inherit the Earth, but not its mineral rights.” –J. Paul Getty.
Today, the land on which the Little Pink House that is the subject matter of the Kelo stood is a vacant lot inhabited by feral cats. Today, there is a serious shortage of low cost affordable housing. People are living on the streets in number starting to look like the 1920s or unlike the depression era, if lucky, in their cars or RV. Nobody seems to know what to do.
May I take the opportunity to make a suggestion? How about we give everyone some dirt with a tax holiday? You know, 50 acres and a mule with a tax exemption. Then let’s and see what happens. Happy Holidays by the fire if you are fortunate enough to live in a home with a fireplace, or, at least, running water. Ho! Ho! Ho! Here’s to coal, your own coal mine in your stocking.

Did you get your fill of Phil?
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