DEBATE OF '98- responsibilities of forest land owners

Don Baccus dhogaza at
Wed Apr 22 13:39:07 EST 1998

In article <6hl1jc$es6$1 at>,  <mcour at> wrote:

>I would not argue that there is anything "primeval" about property rights.
>However, property rights are granted by the US Constitution and should only be
>infringed upon in the manner setforth therein (just compensation).

Now, you've just drifted into the realm of absolute private property rights

There's nothing unconstitutional about the federal government protecting
public assets, and in many cases can constutionally do so without 
compensation.  This principle has been upheld with a very long string of
case history in court.

There's really not much point in trying to debate constitutional law in
a forestry newsgroup.  The reality is that foresters and private landowners
must operate within the legal framework that exists, whether they like it
or not.  

I'm sure there are plenty of newsgroups where you can find lots of people
who will slap you on the back and congratulate you for your beliefs,
why clutter this group with irrelevant discussion?

>founders saw fit to demand that if the rest of society wants to exert it's
>interests by public use of private property, then they have to pay for it.
>If you don't like it, take the high road and try and change the constitution.

We don't have to change the constitution because there's a large body of law
that delineates a "takings".  Congress has taken up the issue of potentially
passing "takings" laws precisely because the Constitution does not support
the theory of the absolute supremacy of private property rights.

>In places where there is no written guarantee that "private property shall not
>be taken for public use except by just compensation" tings might be
>justifiably viewed differently.

"taken for public use" is not equivalent to saying "restrictions on use".  This
is why the theory of the absolute supremacy of private property rights has
foundered in the courts from day one.  The key question is "when are restrictions
so severe that the owner's use of his or her land is restricted to the point 
that it is, in practice, taken for public use?".  The courts have struggled
with this question for nearly a century that I'm aware of, and maybe longer.

And, yes, if you don't like it, take the high road and try and change the
constiution.  My bet is that you'd probably like to get rid of the part
that says the Supreme Court, not you or I, is the final arbiter of the
constitutionality of a law.  

>But for Americans to demand the private
>property rights guaranteed by the constitution is not "worship" of property
>rights any more than demanding free speech or trial by jury is worship of
>those rights.

Americans HAVE the property rights guaranteed by the constution, as limited
by other parts of the constitution.  They don't have certain extra-constitutional
rights that property rights extremists wish they had, but as you said, y'all
would be better off to quit whining and get some laws passed. 

>However, if you think it's acceptable to take away the property rights
>guaranteed by the Constitution (without amending the Constitution in the
>prescribed manner) because it serves the public interest,

Of course it isn't.  That's why the Supreme Court does rule in favor of
landowners in some cases, just as it rules in favor of government in
other cases.  The property rights amendment is quite narrowly written.
As you mention, our Founding Fathers were fairly bright, if they'd meant
to establish broader property rights they would've passed a more broadly
written amendment.   The abuse they were concerned with was confiscation
of property without payment, commonly done by Armies at the time, 
including the Revolutionary Army on certain occasions.  

Again, though, this isn't really the forum to discuss this.  If you want
to learn about Constitutional law, go hang out on one of the forums that
debate this - you'll find lawyers there who understand the subject.  If you
want a pat on the back from fellow-travelers on the right, go to one of
the right-wing political groups.

I think you should stick to forestry issues here.

- Don Baccus, Portland OR <dhogaza at>
  Nature photos, on-line guides, at

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