How is it that a modern, American man can believe that the goals of our nation are best represented by the thoughts and writings of 18th century writers and philosophers?
I refer, of course, to myself.
This reflection is based upon two occurrences of the past week: Senator McCain's embrace of Cap and Trade, and the announcement by Secretary of Interior Dirk Kempthorne that the Polar Bear will receive increased protection under the Endangered Species Act.
It is true that seeking to maintain, or conserve, the legitimacy of government is an 18th or 19th century ideal. This era compares favorably to the last 50 years of government in terms of adherence to the rule of law, the authorities and restrictions on government actions, and the primacy of the individual and the states to determine the rules with which issues of non-federal consideration are managed by the states, and the rules with which issues of federal importance are managed by the federal government.
Overarching this division was the 14th Amendment to the Constitution of the United States. The relevant citation is here:
"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."
That's a huge protection to you and me.
If you've never read the Constitution, perhaps it's time you should. Grab a cuppa coffee, sit back and scroll through the document. It's fascinating to read, to see the words that have been adopted, that regulate government. That limits government.
Now for the newcomer to Constitutional law, a caveat: if you've ever seen a TV lawyer sitting in his office, with rows of similarly bound books in bookshelves behind the Legal Beagle, those books are the recorded decisions of cases that refer both to statute and constitutional authority for those decisions. Those books contain the writing of judges and are their opinions on whether the authority for any action, whether legislative or the action of an individual, are protected by that authority, or fail to meet the test of validity under statute or constitutional authority.
So, after reading the Constitution if you reflect upon the actions of the state or national legislature--Congress, the House and Senate--and come to the conclusion that many of the actions of your state legislature or national legislature are un-Constitutional, chances are, you are apparently right. Apparently right.
Not actually right.
One of the things that muddies up the water for understanding your constitutional rights is the role that is played in enforcing constitutional rights and restrictions through the process known as jurisprudence. Hopefully, somewhere in the past you've heard the phrase "government of law, not of men". The intention of the phrase is, we can look to law for clear guidance of what is expected of me, what my rights are, what my obligations are, and what the limits are for actions, either by me as an individual, or for the government, on what it may or may not require, limit or approve.
It's written down. It's there today and will be there tomorrow. No individual can simply trump those rights and limits arbitrarily. And, thanks to the adoption of the 14th Amendment, the rights of the individual and the limits of the state have been extended to us as rights protected by our federal constitution. Which, among these, perhaps the most important is the Fifth Amendment. This is the amendment that protects you and me from tide and current of public opinion and says, in part:
"...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."
Oregonians have struggled to maintain their property rights following the adoption of SB 100, signed into law on May 29, 1973.
I remember the mucky-mucks meeting with the political science department before passage. There were a couple of profs who offered up reasonable opposition to the "plan" to plan the future of Oregon with a series of plans designed to lock development out of Oregon's future. But a very popular governor pushed the plan through. "Visit, but don't stay."
Also clever bumper stickers that excoriated us: "Don't Californicate Oregon".
So, the stated policy of Oregon since 1973 has been to put into place restrictions on growth and development. The only problem has been, since people have been told that their property may no longer be used for whatever use they may choose to put it toward, that the limit on property rights has a direct economic cost. That is, by limiting the development of a piece of land, the government has performed a "taking". And, as we've seen above, the Fifth Amendment to the Constitution, through the extension of federal rights to our property, such a taking can only take place legally if the owners of property have been deprived of their property through the application of due process. Which is why Measure 37 was passed in 2004. And immediately attacked in the legislature in 2005. It would have taken the teeth from SB 100. And the planners must plan.
They were against it. (Measure 37.)
So, how to offer the patina of due process without providing due process? Pass a re-do law and misrepresent the law to voters. (Measure 49.)
Trust and the Even Playing Field. Those who have to control the uses to which you would choose to put your property don't trust you. If they did, they'd never pass laws to limit the uses to which you would put your property. We talked before about the need to limit certain uses. We've seen that there are laws put in place to protect us from the misleading and the corrupt.
But what happens when the very premise from which you start is corrupt? The essential nature of SB 100 is to prevent you from finding the best possible use of your property--with the judgment of a central state agency (LCDC) being the arbiter of use and possession of your property.
I refer, of course, to myself.
This reflection is based upon two occurrences of the past week: Senator McCain's embrace of Cap and Trade, and the announcement by Secretary of Interior Dirk Kempthorne that the Polar Bear will receive increased protection under the Endangered Species Act.
It is true that seeking to maintain, or conserve, the legitimacy of government is an 18th or 19th century ideal. This era compares favorably to the last 50 years of government in terms of adherence to the rule of law, the authorities and restrictions on government actions, and the primacy of the individual and the states to determine the rules with which issues of non-federal consideration are managed by the states, and the rules with which issues of federal importance are managed by the federal government.
Overarching this division was the 14th Amendment to the Constitution of the United States. The relevant citation is here:
"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."
That's a huge protection to you and me.
If you've never read the Constitution, perhaps it's time you should. Grab a cuppa coffee, sit back and scroll through the document. It's fascinating to read, to see the words that have been adopted, that regulate government. That limits government.
Now for the newcomer to Constitutional law, a caveat: if you've ever seen a TV lawyer sitting in his office, with rows of similarly bound books in bookshelves behind the Legal Beagle, those books are the recorded decisions of cases that refer both to statute and constitutional authority for those decisions. Those books contain the writing of judges and are their opinions on whether the authority for any action, whether legislative or the action of an individual, are protected by that authority, or fail to meet the test of validity under statute or constitutional authority.
So, after reading the Constitution if you reflect upon the actions of the state or national legislature--Congress, the House and Senate--and come to the conclusion that many of the actions of your state legislature or national legislature are un-Constitutional, chances are, you are apparently right. Apparently right.
Not actually right.
One of the things that muddies up the water for understanding your constitutional rights is the role that is played in enforcing constitutional rights and restrictions through the process known as jurisprudence. Hopefully, somewhere in the past you've heard the phrase "government of law, not of men". The intention of the phrase is, we can look to law for clear guidance of what is expected of me, what my rights are, what my obligations are, and what the limits are for actions, either by me as an individual, or for the government, on what it may or may not require, limit or approve.
It's written down. It's there today and will be there tomorrow. No individual can simply trump those rights and limits arbitrarily. And, thanks to the adoption of the 14th Amendment, the rights of the individual and the limits of the state have been extended to us as rights protected by our federal constitution. Which, among these, perhaps the most important is the Fifth Amendment. This is the amendment that protects you and me from tide and current of public opinion and says, in part:
"...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."
Oregonians have struggled to maintain their property rights following the adoption of SB 100, signed into law on May 29, 1973.
I remember the mucky-mucks meeting with the political science department before passage. There were a couple of profs who offered up reasonable opposition to the "plan" to plan the future of Oregon with a series of plans designed to lock development out of Oregon's future. But a very popular governor pushed the plan through. "Visit, but don't stay."
Also clever bumper stickers that excoriated us: "Don't Californicate Oregon".
So, the stated policy of Oregon since 1973 has been to put into place restrictions on growth and development. The only problem has been, since people have been told that their property may no longer be used for whatever use they may choose to put it toward, that the limit on property rights has a direct economic cost. That is, by limiting the development of a piece of land, the government has performed a "taking". And, as we've seen above, the Fifth Amendment to the Constitution, through the extension of federal rights to our property, such a taking can only take place legally if the owners of property have been deprived of their property through the application of due process. Which is why Measure 37 was passed in 2004. And immediately attacked in the legislature in 2005. It would have taken the teeth from SB 100. And the planners must plan.
They were against it. (Measure 37.)
So, how to offer the patina of due process without providing due process? Pass a re-do law and misrepresent the law to voters. (Measure 49.)
Trust and the Even Playing Field. Those who have to control the uses to which you would choose to put your property don't trust you. If they did, they'd never pass laws to limit the uses to which you would put your property. We talked before about the need to limit certain uses. We've seen that there are laws put in place to protect us from the misleading and the corrupt.
But what happens when the very premise from which you start is corrupt? The essential nature of SB 100 is to prevent you from finding the best possible use of your property--with the judgment of a central state agency (LCDC) being the arbiter of use and possession of your property.
Oregon law has been stacked against the mom and pops, the small, independent farmer, the rancher and forrester, land holder and developer for more than 35 years. As the clearly stated policy of the state, as exhibited through its adoption and enforcement of SB 100. Because, you are not to be trusted to make the "proper" decisions that a board of appointed political hacks would make, if given the power to make those choices. Because your choice aren't trustworthy.
It's kinda sad to think about, really. Your government at odds with you, your dreams, wishes and your ideas. They have the tools to limit growth. They have the tools to deliver wealth to their friends. But, they wouldn't do that, would they?
Here's a couple of links for you to think about. Robert Sherwood's "Land Use: Why Plan?" And Doug Feidor's "The Eco-Regulatory Conspiracy."
I, myself, think that "conspiracy" is too strong a word. I don't think people are out there actively trying to conspire against hard working, honest men and women.
But I do think it's possible that we can be killed by kindness.
If you've ever raised children, you know how important it is to teach them how to be responsible for their actions. With SB 100 we never have to teach our kids about choices. The government is there, to make them for us.
Really. And what does this say about Trust and the Level Playing Field?
