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Dubious Domain: No taking of personal property
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Jun 5, 2025
Jon Roland at Austin Constitution Meetup, 2013/08/20, presents evidence and argument for the legal theory of "eminent domain" and why it can only properly be used to take land, and not to take personal property. See http://constitution.org/proppriv/e-domain/dub-dom.html
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this is the second part of the August
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20th
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2013 Austin Constitution meet up I'm
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John
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Rand uh in this segment we will be
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discussing the problem of em domain as
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applied to personal
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property this has come
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up uh in a recent
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case in the state of
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California where the city of Richmond
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has sued to try to take using its
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emminent domain
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Powers uh a number of mortgages on
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homes um not the land on which the homes
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are built but the mortgages on the on
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that
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land and their stated purpose is to be
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able to uh uh get control of the
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mortgages and thereby uh either uh uh
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renegotiate them downward to match the
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uh uh market value of the property many
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of them are
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underwater
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or uh to uh even to perhaps for clothes
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on them and take the houses and sell
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them to somebody
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else but
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uh there's a problem with
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that uh of course now the the banks The
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Lending the lenders are objecting to
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that they are suing to for declaratory
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and injunctive relief uh to prevent the
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city of Richmond from doing
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that uh of course from their point of
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view it's simply taking their property
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and probably not paying full full value
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for
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it
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um so the problem with that is
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to
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examine what it is that a mortgage is
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and whether or not the power of imminent
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domain applies to
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it now the
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original uh
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concept of real property that is to say
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land was that all
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land was owned by The
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Sovereign which in medieval times was
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the the
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Monarch um when the United
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States separated from Britain and became
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a
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republic the Monarch was replaced as
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Sovereign by the people
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collectively and but if the principle
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remained true
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that
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in MO almost every country the
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underlying land is
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not primarily owned by individual or
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private parties it's owned by the
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people and what people what individuals
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or private parties can own are claims on
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the
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land which are sometimes called
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States and a state is a bundle of Rights
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it's a right to exclusive possession use
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disposal inheritance conveyance
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subdivision uh and so forth a large
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bundle of rights that pertain to the
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land but strictly
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speaking those claims are not real
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estate those are
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that is say they're not real property
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they're personal property because they
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can be moved around and exchanged
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separated divided held by different
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parties uh so they have the character of
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personal
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property now the question arises whether
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irent domain is a power that can be
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applied to claims on land
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or for that matter on any other kind of
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personal property and not just on the
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land
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itself
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um the US Constitution does not use the
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term M
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domain as nor do most state
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constitutions it talks about takings
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generally and there are more than one
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way that government can take
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property imminent domain is one of them
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the most common situation uh in The
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Early Republic was simply armies on the
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uh in the in the field taking uh food
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and Provisions that they might find in
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farms and perhaps giving the farmer an
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IOU but uh which was supposed to be paid
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by the government but expropriating the
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property for use by the military off
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operations uh living off the land as it
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were uh that is a kind of taking also
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and it is covered by the Fifth Amendment
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to the
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Constitution but it is not the exercise
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of emino domain
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power that's these are two different
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powers uh in fact the takings in the
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field of battle would really
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be more a matter of of a wartime power
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than of eminent domain
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power
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so we had an interesting turn of events
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though
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the uh up until the case 1876 case of
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coold the United
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States it was
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presumed that uh only the states were
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Sovereign over their
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land and that if the United States to
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say the union government wanted to take
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land they had to get the consent of the
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state
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legislature and they had to go through
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state courts under the state's domain
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emminent domain powers in order to get
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that land they couldn't do it directly
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but the cold decision
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did is it sustained
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claim uh or practice by
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the US government
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to take it
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directly and if you recall on the
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Constitution it provides in article one
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section 8 of
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16 that
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uh the United States May
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accept uh Parcels of land with the
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consent of the state legislature for
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purposes of a of a national capital and
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for various other purp like Forts
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dockyards and so forth but those all had
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to require a the consent of the state
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legislature they couldn't just be taken
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directly the problem is that although
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the union government did
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have Sovereign ownership of land in the
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territories it did not have in the
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original 13 states and it did not have
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in the territories when they were
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organized as States when territory is
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organized as a state and admitted into
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the Union as on an equal basis with
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other states the state thus created now
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has the ultimate ownership of the land
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in that
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state uh even though the union
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government might retain a
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Fe simple title in some part of the land
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in the state as they do with in large
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Parcels in Nevada and other Western
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States the simple fact is that that's
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still ultimately state land with under
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State Legislative
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jurisdiction
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uh
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the so
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the the the the the defining
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characteristic of ownership is
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legislative
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jurisdiction in other words if a uh
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lawmaker can make laws for a territory
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it is the ultimate owner of that
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territory uh regardless of
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what
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ownership in the form of Estates that
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private parties may
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have now the question arose not arises
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now is there an Ultimate ownership of
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the same kind in personal
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property now a common argument for the
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imposition of property
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taxes on personal property is that the
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state is also the ultimate owner of
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personal
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property
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however uh that is not born out by of
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the historical Legacy of our legal
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system U there have many states have
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enacted personal property taxes on
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tangible
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Commodities but not on intangible
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Commodities that's they aren't
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intangible personal
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property uh
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the theory when it's been challenged is
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that tangible Commodities are are
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somehow derived from the soil and
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therefore carry with them some of the
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attributes of uh ownership by The
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Sovereign however that's not true of all
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uh tangible
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Commodities uh they are not all
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uh derived from the soil at least not
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from us soil they might come from
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outside the United States
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so uh if they come from the outside the
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United States they are not strictly
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speaking a derive from us
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soil now clearly a mortgage being a
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claim
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on real property to secure payment of a
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node is an intangible person form of
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intangible personal
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property and to seize it uh will take
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something more
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than the power of emminent
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domain uh now such property can be
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redistributed through civil
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litigation where the government plays
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the role of mediator in disputes as to
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who is the real owner of things but
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uh that is not the same thing as taking
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it because it is the
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it already owns it and is simply
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extinguishing the claims to possession
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and use of
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it so uh my argument in this
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paper article on constitution.org
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which can be found under rights powers
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and duties and you scroll down you'll
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find the title dubious
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domain I'm sorry you'll find property
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property and
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Privileges and then in the page on
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property and privileges I'm sorry
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property and privacy you will find uh a
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link to the
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article uh I combine property and
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privacy into one page one Gateway page
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because the two are very closely
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linked
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uh generally speaking uh one has privacy
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in one's
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property and uh
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although
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uh it is not always made clear the two
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are so closely linked that it makes
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sense to combine them in that
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way so I contend that the coold case was
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wrongly
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decided
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and that a state when it is created out
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of territory
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um over which the United States did not
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have
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Sovereign ownership of personal property
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does not thereby acquire so that that
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kind of sovereign
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ownership um now one could argue that
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the people of the state when they enact
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a
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constitution as is alleged that
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California has done
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uh could provide the state with the
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authority to take personal property by a
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in a
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domain
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however there's some question about
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whether the people of the state even
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have the authority to delegate that
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power to a state
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constitution and that's what I argue
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against in my article that is not a
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power that they is Theirs to delegate
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and therefore it is
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unconstitutional to take it through em
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domain there may be other bases for
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taking it more of a regulatory or tax
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power bases but not through imminent
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domain
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