low preference guy
06-12-2010, 05:07 AM
This is a bit old, but I haven't seen it posted here.
I wish this commentary appeared in more places than just Judge Nap's facebook.
Racism and Property Rights
Monday, May 24, 2010 at 12:47pm
There is a very legitimate, historically well-grounded argument that the Constitution does not authorize the federal government to enter upon or regulate private property, absent a search warrant issued by a judge (in the case of entering upon) and litigation demonstrating to a jury its right do so and paying for its right to do so (in the case of regulating).
The Fourth Amendment was written in response to the self-permitted entry upon the colonists’ private property by British soldiers, and the Fifth Amendment was written in response the Parliament-authorized seizure of the colonists’ private property by British agents. A seizure can consist in the physical takeover of property or in substantially preventing the owner from using it as he wishes. The Fourth Amendment requires a search warrant from a judge and the Fifth Amendment requires that the government first sue for the right to regulate private property and then pay the landowner for any regulation that diminishes the value of the property. Both amendments have combined to make it very clear that the federal government has no authority to tell private property owners how to use their property, or whom to admit to it, and whom they may exclude from it.
As well, the First Amendment guarantees the right to association; and that means the right not to associate with whomever one chooses on one’s property. The Civil Rights Act of 1964 generally prohibits the states and the federal government from making decisions based on race; and it prohibits federal and state courts from enforcing decisions based on race. This was necessitated because certain states enacted and the federal government even followed Jim Crow laws that legally enshrined blacks as second class citizens for the one hundred years that immediately followed the Civil War. The Act also prohibits private persons from making decisions based on race with respect to their private property when that property has become a public accommodation--one to which the public is generally invited in order to conduct commercial transactions with the property owner.
It is the latter prohibition that Rand Paul has argued puts the nose of the federal camel under the private property owners’ tent. The logic of his argument informs that if the feds can compel a restaurateur or bar owner to admit and serve those whom he prefers not to admit and serve on the basis of race, then the same feds can force lesbian bars to admit straight frat boys; can force a Jewish youth group on a state college to admit Holocaust deniers; can compel the Catholic Church to hire abortionists; and can force daycare centers to permit parents to carry guns in the presence of babies on the private property of the day care facility. It might even be able to compel the Congressional Black Caucus to admit white Members of Congress. The list of potential interferences with the right to use and enjoy private property and the right to associate is potentially endless once one grants the feds the power to enact any regulation not authorized by the Constitution.
No matter how noble the federal purpose, there will be no limit to the prohibitions the feds might impose--like the size of toilet bowls, the strength of water pressure in showers, the wattage of light bulbs, to name a few. Dr. Paul’s argument is based, as well, on the natural right to use and enjoy private property as one wishes, and the essence of that use and enjoyment is the right to exclude whomever one wishes--even the government--from one’s private property. This right is enshrined in the fabric of American values in the Declaration of Independence.
It is odd that Rand Paul should be singled out for his principled defense of property rights when the person who is currently third in line for the Presidency made vast racial arguments in his filibuster against the Civil Rights Act of 1964, and still sits in the Senate. That is the 90 year old ex-KKK member who is currently Senate President Pro-Temp, Sen. Robert Byrd (D-WV).
http://www.facebook.com/notes/judge-andrew-napolitano/racism-and-property-rights/400982563415
I wish this commentary appeared in more places than just Judge Nap's facebook.
Racism and Property Rights
Monday, May 24, 2010 at 12:47pm
There is a very legitimate, historically well-grounded argument that the Constitution does not authorize the federal government to enter upon or regulate private property, absent a search warrant issued by a judge (in the case of entering upon) and litigation demonstrating to a jury its right do so and paying for its right to do so (in the case of regulating).
The Fourth Amendment was written in response to the self-permitted entry upon the colonists’ private property by British soldiers, and the Fifth Amendment was written in response the Parliament-authorized seizure of the colonists’ private property by British agents. A seizure can consist in the physical takeover of property or in substantially preventing the owner from using it as he wishes. The Fourth Amendment requires a search warrant from a judge and the Fifth Amendment requires that the government first sue for the right to regulate private property and then pay the landowner for any regulation that diminishes the value of the property. Both amendments have combined to make it very clear that the federal government has no authority to tell private property owners how to use their property, or whom to admit to it, and whom they may exclude from it.
As well, the First Amendment guarantees the right to association; and that means the right not to associate with whomever one chooses on one’s property. The Civil Rights Act of 1964 generally prohibits the states and the federal government from making decisions based on race; and it prohibits federal and state courts from enforcing decisions based on race. This was necessitated because certain states enacted and the federal government even followed Jim Crow laws that legally enshrined blacks as second class citizens for the one hundred years that immediately followed the Civil War. The Act also prohibits private persons from making decisions based on race with respect to their private property when that property has become a public accommodation--one to which the public is generally invited in order to conduct commercial transactions with the property owner.
It is the latter prohibition that Rand Paul has argued puts the nose of the federal camel under the private property owners’ tent. The logic of his argument informs that if the feds can compel a restaurateur or bar owner to admit and serve those whom he prefers not to admit and serve on the basis of race, then the same feds can force lesbian bars to admit straight frat boys; can force a Jewish youth group on a state college to admit Holocaust deniers; can compel the Catholic Church to hire abortionists; and can force daycare centers to permit parents to carry guns in the presence of babies on the private property of the day care facility. It might even be able to compel the Congressional Black Caucus to admit white Members of Congress. The list of potential interferences with the right to use and enjoy private property and the right to associate is potentially endless once one grants the feds the power to enact any regulation not authorized by the Constitution.
No matter how noble the federal purpose, there will be no limit to the prohibitions the feds might impose--like the size of toilet bowls, the strength of water pressure in showers, the wattage of light bulbs, to name a few. Dr. Paul’s argument is based, as well, on the natural right to use and enjoy private property as one wishes, and the essence of that use and enjoyment is the right to exclude whomever one wishes--even the government--from one’s private property. This right is enshrined in the fabric of American values in the Declaration of Independence.
It is odd that Rand Paul should be singled out for his principled defense of property rights when the person who is currently third in line for the Presidency made vast racial arguments in his filibuster against the Civil Rights Act of 1964, and still sits in the Senate. That is the 90 year old ex-KKK member who is currently Senate President Pro-Temp, Sen. Robert Byrd (D-WV).
http://www.facebook.com/notes/judge-andrew-napolitano/racism-and-property-rights/400982563415