Perhaps one day, if we save the planet over Scalia’s dead body, his proposed statue in the proposed National Garden of American Heroes (www.theguardian.com/… ) will be treated like that of Taney (en.m.wikipedia.org/…). President Lincoln made no public statement in response to Taney’s death but did attend his memorial service. (en.m.wikipedia.org/…) Fine that “Scalia was Ginsburg’s favored souvenir shopping buddy when they traveled together” (www.washingtonpost.com), but he’s no hero.
Scalia was to the environment and women’s bodies what Taney was to the human chattel of the United States. Scalia’s opposition to abortion and birth control was well known (www.wsj.com/…; archive.thinkprogress.org/…). This piece begins with a discussion of Scalia’s seminal property rights opinion, which is far less well known but, because it was the majority’s decision, far more profound in its long term implications. Scalia is no longer around to opine against abortion and birth control, but his property wrongs legacy lives on.
An extreme version of “vested” ruling class property rights in the U.S. has been so fetishized by Scalia and his sacred brotherhood—into malignant property wrongs—that despair is also our enemy.
We are in a long struggle for liberty and justice for all, but we do not have time for a long struggle, and the odds, both economic and legal, are horribly stacked against us. It’s too late for Scalia to have a Once-ler conversion and start to clean up his mess. It’s our mess now. “Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.”
In the meantime and for all time, people need good food to eat. The ruling class likes to use the fear our basic needs will not be met to assure that we will never be able to focus very long on the long struggle. We must do all we can with what we have both to fight the long struggle and to joyously prefigure the world we want through the way we treat each other on a daily basis.
We really have no good choice but to use a broader spectrum of resistance than just protest and political engagement, as critical as those forms of resistance are. Even as we work to build a successful intersectional property “rewrites” movement, we can help each other and fight despair through an anarchistic strategy older than the first real estate deeds. We can do humane deeds of solidarity with the land we do have use of.
Below the break is a very brief description of this strategy, sustainably updated for a planet on fire. There I will write from the heart as a human and from the mind as a leftist soil scientist whose maternal and paternal grandparents each in one way or another were tied to land used to grow food. Nothing there will be new, but it may be helpful to view it in the context of property rights and wrongs, a connection not always made.
But first it may be helpful to describe with a few citations the property wrongs we are up against that are so deserving of a rewrite and that can cause such despair. We must not eschew both protest and political engagement to address ongoing and past property wrongs. Property wrongs are not only at the foundation of systemic racism but also helping to ruin the environment.
Hard to believe but when Lucas v. South Carolina Coastal Council (www.law.cornell.edu/…) came out 28 years ago, your humble writer, then a young environmental bureaucrat in the south, gave serious consideration to going on a hunger strike. I felt that if people would only notice what had just happened they would see what lay ahead for desperately needed U.S. environmental regulations.
With the fall of the Soviet Union and in a time of capitalist triumphalism, few were noticing and even fewer seemed to care. Since then we have had a new awakening of interest in the environment, largely centered on climate change. It is high time to take notice. Perhaps now people will begin to see what the younger me saw back then.
If the South Carolina Supreme Court of all places, once the bastion of human chattel slavery property rights, could be reversed by the now fully conservative U.S. Supreme Court for not being conservative enough on property rights, the fetishization of private property interests over the people’s interests was complete.
The state was not even allowed to do a good thing to protect the public interest, supposedly because the U.S. Constitution says “nor shall private property be taken for public use, without just compensation.” South Carolina had somehow violated the Fifth Amendment and taken state-defined property rights by putting in place a state permitting system that could potentially deny David H. Lucas a permit to build beach houses on sand dunes he had purchased in 1986.
Your head may be spinning when you read that last sentence, but I can assure you it was party time at the Federalist Society. Based on right wing “libertarian” economic theory adopted by Scalia writing for the conservative majority, every private property owner has the constitutional right to make economically viable use of every parcel of property no matter where the parcel lies. Any modern environmental regulation (which virtually by definition goes further than the common law of nuisance, for that’s the point) standing in the way of economically viable use “takes” the property.
The implications were and are vast, not only for sand dunes and irreplaceable wetlands, rainforests, and endangered species, which often are located on private property. By conservative judicial fiat, any public interests, such as clean water and air and saving the planet from global warming, were rendered constitutionally secondary in importance to private property profitability. The only degree of off-site harm prevention assured of not being a “taking” was that which would have already been protected under the common law of nuisance.
As an environmental agency worker at the time I can attest that the chilling effect on government regulators was enormous. To this day each federal and state permit decision and regulation is in effect scrutinized to make sure it won’t stop any private property owner from making economically viable use, which is typically viewed with caution from a liability standpoint to be synonymous with making a profit on the investment. Agencies often don’t have access to, and capability to analyze, proprietary profitability information. So when pressed they usually take the applicant’s or industry’s word for it. While agencies can take a chance and risk going to court over whether that is what Lucas requires, in the industry and government offices where potentially expensive permitting decisions are made and policies set, that is usually what it means in practice.
Scalia oversaw the final installation of a constitutional interpretation system rigged to live in the past and prevent people from being saved if a ruined planet is necessary for companies to make money.
He is another in a long line of judicial Once-lers. The system he protected and enhanced of private profit over people is the constant Thneed.
Furthermore, the mid-19th century spirit of Taney was subtly being channelled by Scalia in a “liberating” landmark property rights decision celebrated by wealthy white men. Once again the U.S. Supreme Court oh so reluctantly concluded that it simply could not, no I say, could not, within the framer’s hallowed intent, allow a constitutional interpretation injustice—to dune owners and certainly not to slave owners.
Property wrongs are now calcified property rights under the Fifth Amendment. Just compensation is owed for the unjust.
The judicial branch serves as the ultimate environmental damager protector much as it once protected the institution of slavery. There is now, thanks to the so-called originalist Scalia, an invented federal “constitutional” economic backstop in the event humane elected officials can somehow be put in power in the legislative and executive branches.
The Trump administration’s corrupt and extreme attacks on environmental regulations are the natural outgrowth of this corrupt and extreme so-called property rights movement. The Trump administration looks for support not only from conservative judicial appointees but also from a century of festering anti-public interest legal rhetoric accepted as gospel in the halls of the powerful. Its inhumane environmental policy is linked to its inhumane policies against minorities, women, and immigrants through a near worship of a skewed way right view of private property, ensuring the maintenance of historical patterns of injustice, imperialism, and environmental destruction.
I guess to go on a hunger strike is to embrace a primal fear because of a broader moral concern. Would I have been a fool to go on that hunger strike? Not at all, and looking back, I wish I had done so to try to draw attention to the issue. But we cannot expect everyone to sacrifice like that. I myself didn’t go on a hunger strike and have rarely missed a meal, and never due to economic hardship. Hardly a profile in courage, I decided instead to write a forgotten agency magazine article and to do my best to keep up an internal agency fight for what was right.
I did not see then, and I do not see now, how we can save humanity from self-destruction when “property rights” are, at least according to the dominant right wing thinking of the U.S. judiciary, considered paramount over social needs and regulations based on science.
I note with some envy a portion of the German Constitution approved in 1949 by the occupying Western allies of World War II:
Article 14 [Property, inheritance, expropriation]
(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
(2) Property entails obligations. Its use shall also serve the public good.
(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.
It should not matter to us that 60 years before Lucas some pompous white man decided it would be a good idea to preference coal company mining profits over human needs.
Prior to Justice Holmes’ exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), it was generally thought that the Takings Clause reached only a “direct appropriation” of property, Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287 (1871), or the functional equivalent of a “practical ouster of [the owner’s] possession.” Transportation Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879). See also Gibson v. United States, 166 U.S. 269, 275-276, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897). Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U.S., at 414–415, 43 S.Ct., at 160. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].” Id., at 415, 43 S.Ct., at 160. These considerations gave birth in that case to the oft-cited maxim that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Ibid.
On a positive note, without recognizing itself as such, and led by the reparations movement, a broad and deep property “rewrites” movement is gradually emerging in this country to attempt to right a host of serious continuing property wrongs.
This complex and frankly not adequately cohesive movement dialectically and implicitly confronts the right wing property rights movement of the last century. But it is important to realize that the right wing property rights movement’s TRUE intellectual roots are in systemic racism grounded in absolutist constitutional interpretation of convenience. Scalia was standing on the shoulders of the famously sitting Taney.
The ultimate rhetorical framework for the Lucas decision was actually put in place by slave-holding founding fathers, including James Madison, author of the takings clause of the Fifth Amendment. For now Madison appears to have largely won, with the notable exception of the partial liberation of humans from chattel slavery. This partial liberation would have been the most heinous of takings in Madison’s eyes even as he privately conceded slavery’s immorality.
Where’s just compensation to the progeny of the slaves who paid for Madison’s powdered wig lifestyle?
To extract slave labor, Madison instructed his overseer to “treat the Negroes with all the humanity and kindness consistent with their necessary subordination and work.” The amount of work must have been high, for Madison told a British visitor that he could make $257 per Negro annually for only $12-13 in upkeep.
When one hears Cato Institute (f/k/a Charles Koch Foundation) types palpitating over the need for protection of property rights it is tempting to not go get a pitchfork and march into not out of 1000 Massachusetts Ave. The Cato Institute is the “suck-it-up and let us keep our wealth” center of faux libertarianism. Countless landless human beings were sold, tortured, raped, murdered, and died working the land, which was stolen from countless previously landed Native Americans. What about their property rights and the unpaid compensatory debt to their descendants?
The Cato Institute approach is to say “sad,” provide some support for criminal justice reform, undercut calls for reparations (www.cato.org/…, www.cato.org/…) and fair housing (www.cato.org/…, www.cato.org/…), and more generally blame government programs and the alleged dependency of Blacks and Native Americans that squelches their entrepreneurial spirits.
[C]ongress has a profound responsibility to address American Indian issues—not to hand‐out more money but to enact deeper reforms to strengthen individual property rights, efficient legal structures, investment, and entrepreneurship.
Recasting immoral acts and property accumulation as unconstitutional, ensuring just compensation for property wrongs, and establishing a loving distribution of the surplus production from the land could take still more generations and enormous sacrifices to overcome the status quo of injustice. President Lincoln emancipated using his commander in chief powers during the Civil War as a legal means to liberate “owned” human beings in areas of revolt (en.m.wikipedia.org/…). But he felt he had to accept as a given the immoral assumption that human beings could be owned in the first place.
How messed up is that? A system that, except in times of a bloody civil war, is so sick that it won’t allow the legislative or executive branches to free people without permission of or payment to the wealthy white tyrants terrorizing and taking the liberty and lives of almost 4 million human beings. Talk about an evil empire!
Little wonder why we should not be reappraising “property rights” and accepting as self-evident truth that, as all are created equal, the slaves each day of their lives had a property interest in their own persons deserving of just compensation. (racism.org/…)
Wrapping ruling class interests in immoral property rights rhetoric is time-honored, but that doesn’t make it right. Current property rights lingo implicitly harkens back to the “good old purist property rights days” of slavery.
And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.
Now, as we have already said in an earlier part of this opinion upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States in every State that might desire it for twenty years. And the Government in express terms is pledged to protect it in all future time if the slave escapes from his owner. This is done in plain words — too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
Dred Scott v. Sandford, 60 U.S. 393, 451-2 (1856)
Chief Justice Taney was not the first judge who defended the morally indefensible.
Nineteenth century apologists for the expansion of slavery developed a political philosophy that placed property at the pinnacle of personal interests and regarded its protection to be the government’s chief purpose. The Fifth Amendment’s Just Compensation clause provided the proslavery camp with a bastion for fortifying the peculiar institution against congressional restrictions to its spread westward. Based on this property-rights centered argument, Chief Justice Roger B. Taney, in Dred Scott v. Sanford (1857), found the Missouri Compromise unconstitutionally violated due process.
Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 14.
He certainly wasn’t the last.
What then shall we do in addition to protesting and fully participating in such other democratic processes as are available to remedy property wrongs?
Previously I’ve written about human solidarity and soil sharing in the context of Trump’s blood and soil movement. (www.dailykos.com/…) Now I’d like to briefly bore into the concept of soil sharing as a specific means to help survive America’s colossal property wrongs. Through soil sharing we may joyously prefigure on at least some of the land how the country could be and should be with property rewrites. Once soil sharing was the way of life for humanity. Examples exist of soil sharing by innumerable humans throughout unrecorded and recorded history.
Before I briefly lay out my synthesis for prefigurative soil sharing in 2020’s America, I wanted to give a few remembrances, apologies, and pledges for the future:
Remembrance to Native Americans both before the European invasion, afterwards, and today who knew and know how to live off the land in harmony with nature. I’m especially sorry my white Georgia ancestors lived on stolen red clay land near the Kolomoki mounds complex. I will learn from the past and do my best to be a good ally.
Remembrance to the murdered, raped, kidnapped, separated, and enslaved Africans and their descendants who somehow grew and prepared their own food after working in the forced labor fields, ate their meals amidst the blood and soil from so many property wrongs, then fought for and won their own freedom only to be brutally betrayed and oppressed in a supposedly free country. I’m so sorry I grew up with the racism of my Georgia ancestors and white privilege wired into my brain. I will learn from the past and do my best to be a good ally.
Remembrance to the Black Panther Party, “responsible for creating what members referred to as survival programs, including the well-known Free Breakfast for Children Program.”
Remembrance to my West Tampa born Latinx grandmother Laura, my personal hero of heroes, who first taught me how to grow food in the tiny plot of soil she owned in Hialeah with my grandfather Manuel, who was raised terrace farming in the mountains of La Gomera in the Canary Islands. I am rich in my heart from both of you. You never had a mower because you grew food or native plants in nearly every inch of yard.
Finally, please note two other important things before you read my synthesis:
First, this is not at all intended to imply that we can have justice in America without remedying its property wrongs. Soil sharing without such remedying is prefigurative only, and certainly not curative. In addition, it cannot and never will take the place of vital social insurance programs such as Supplemental Nutrient Assistance Program (SNAP), which need to be greatly expanded not gutted as under Trump. To suggest otherwise would not merely be grandiose but to contribute to the very property wrongs that must be remedied.
Second, this is not intended to cover the subject of commercial agriculture in America, a major topic highly related to property wrongs. (Please see this piece for ideas on potential reforms to commercial agriculture: .www.dailykos.com/…).
Respect nature, restore the soil, grow some food if you sensibly can, and share the surplus
1. If we are growing food as part of prefigurative soil sharing we must respect nature. We must not grow food where it makes no sense to do so or in a way that causes erosion or water or air pollution. We must avoid chemical fertilizers, pesticides, and herbicides, as well as any non-recycled soil amendments. We must recycle and avoid wasting water. We must contribute a net reduction in greenhouse gas emissions from our actions and hopefully a lot more. We must learn to grow locally as much of our food as sensible.
2. We all can help restore the soil, if only in a small way. Everyone can minimize their food waste. Everyone can compost their unavoidable food waste or give it to someone who does. And everyone who composts can either use the compost themselves or give the compost to someone else local who can use it. Minimize mowing area and recycle leaves and other yard debris onsite or nearby rather than sending it to a landfill. Treat the soil well, and it will reward us.
3. Grow some food if you sensibly can. Don’t grow food if it doesn’t make sense for you. Not everyone is in a position to grow food, and not every spot is climactically or physically suited to grow food. Soil and food growing potential varies from person to person, place to place, and by time of year.
4. If you can grow some food congratulations. Now comes the best part: you can share any surplus with others, as humans have been doing since they first learned how to domesticate plants. Growing food, at least if your livelihood doesn’t depend upon it, can be a richly rewarding experience, good for body and soul. If you do it well, you might even grow more than you can consume in your own household. That will allow you to share the surplus with neighbors, food banks, community kitchens, and the like.