Suicide as a Natural Right- Part II

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Part I

The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force [1]. The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange[2]. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) [3]. Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement [4].

However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) [5]. 

There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.

Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made. 

Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives [6]. Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:

The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).

While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.

Footnotes

[1]. The account of Slavery in Locke’s Second Treatise of Government (1690).

[2]. An allusion to  Hans-Hermann Hoppe’s theory of Argumentation Ethics.

[3]. In reference to Block’s postulations related to the possibility of voluntary Slavery.

[4]. How slavery was practiced in the United States was a reprehensible institution. The trans-Atlantic slave trade was incompatible with a property rights justification for self-ownership. 

[5]. An example Walter Block borrowed from legal theorist Stephan Kinsella.

[6]. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.

Caniglia- A Win For the Fourth Amendment

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Over the past couple of years, it seems as if the Fourth Amendment has been under attack. The headlines featuring stories of no-knock raids and other invasive search tactics used by the police. Despite the specter of an expansive police state looming above his, there is a silver lining. There have been some minor victories. One shining example was the Supreme Court ruling inCarpenter V. United States. In which, the high court ruled that conducting warrantless seizures of phone records to be unconstitutional. Another recent example of the court ruling in favor of the Fourth was Caniglia V. Strom.

In Caniglia, the court rejects the First Circuit’s expansive interpretation of the Community Care Taking Doctrine.  Caniglia had been quarreling with his wife pulled out a pistol and asked her to put him “out of his misery”. Mrs. Caniglia decided to spend the night in a hotel to allow her husband to calm down. After not hearing from Edward, she called Cranston police to conduct a welfare check on him. Responding officers reported that Mr. Caniglia seems to be stable. He consented to be evaluated at a psychiatric hospital providing police did not confiscate his firearms. Police later came by the home to remove the guns. Officers informed Mrs. Caniglia that Edward had consented to his firearms being seized. After several failed attempts to recover his guns, Caniglia sued under Section 1983. The First Circuit ruled that the actions of the officers were permissible under the Community Care Taking Doctrine. This decision would subsequently be overruled by the Supreme Court.

Community Care Taking Doctrine

Before reviewing the SCOTUS decision there is still one question that remains. What is the Community Care Taking Doctrine? It is the legal doctrine that enables warrantless searches and entry for noncriminal policing functions. Actions that promote the general interest of the community. This legal construct was devised in the early 1970s because of the Cady V. Dombrowski decision. The petitioner, a Chicago police officer, had been involved in a drunk driving accident. His service revolver had been left in the vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Epitomizing the logic of the doctrine in one single case.

SCOTUS Decision

Justice Thomas in his written opinion sums up the major flaws of extending the Community Care Taking exception to Caniglia. A case that has the rare distinction of being a unanimous court decision.  In a nutshell, his concerns included the lack of justification in previous case law and the constitutional distinction between the home and vehicles. Making the claims that the police acted within the scope of the doctrine questionable.

Lack of Legal Justification

Justice Thomas direct states in his opinion that the First Circuit’s interpretation “… goes beyond anything this Court has recognized.”. The presumption being that generally, home searches require a warrant. By Thomas’s assessment, the lower court applied this doctrine merely because the nature of the search was noncriminal. The conditions of a search being permissible under the doctrine must be for purposes outside of a criminal investigation. The logic in Cady was specific to impounded vehicles already in police custody. It is reasonable to permit officers to assist motorists in trouble on the roadways. However, this privilege allotted to facilitate officers in completing their civic duties should not be viewed as an “… open-ended license..”.

Thomas holding the Care Taking Function to the parameters of Cady establishes effective limits on the doctrine. Favoring the First Circuit’s decision would only further erode the Fourth Amendment. Why?  Since our legal system is influenced by English Common Law, past case precedence directs future court decisions. If there was a case history justifying an expansive interpretation of the doctrine, the logic would have to be continued in subsequent cases. Only further eroding our Constitutionally held right to privacy and baseless searches.

The Constitutional Difference between the Cars and Homes

From the perspective of the Fourth Amendment, there is a difference between the right of privacy in the home and one’s vehicle. This was a point held by Justice Thomas. He expresses in his opinion that the core of the Fourth Amendment was that a person could retreat to their home free of any undue inference from the government; Citing Florida v. Jardine. A major caveat being the instance of exigent circumstances.  A point of argument the First Circuit failed to establish, considering if Mr. Caniglia was a threat himself, action would be necessary immediately. Not hours after the fact. Leading Justice Thomas to state  “…First Circuit… goes beyond anything this Court has recognized..”. Because the officers lack both a warrant and consent of the owner and effectively violated the sanctity of his home.

The Community Care Taking Doctrine has traditionally been applied to vehicles. In the corpus of case law, there has always been a different expectation of privacy in the home. Carroll V. United States, one of the first SCOTUS cases to address automobile searches found that the mobile nature of cars made warrantless searches crucial. However, a house is a stationary private property. Outside of the scope of extenuating circumstances or a warrant in hand, police entering the home is a civil rights violation. The officers who seized Mr. Caniglia’s guns were out-of-line.

Your Car is Not Your Castle- Part II: The Death of Carroll

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Part I

The case history of warrantless vehicle searches only expands from the 1925 Carroll decision. Over time, the conditions under which warrantless searches are permissible to have evolved. Not necessarily for the better. One of the most conspicuous safeguards built into the adjudication of Carroll over the years has been eroded in subsequent court decisions. The prevision of the search being appurtenant to a traffic stop is no longer consistent with the larger body of case law. Allowing probable cause searches to be conducted offsite and even days after the motorist has been detained by authorities. While the Carrol decision was imperfect at least set clear boundaries regarding permissibility. A principled stance that disappeared by the 1970s.

Husty V. United States, 282 U.S. 694 (1931)

Chronologically the next warrantless vehicle search case taken by the Supreme Court was Husty V. United States (1931). Much like Carroll, this case involved a motorist suspected of transporting illicit alcohol. It should be noted that both incidents transpired during the U.S. prohibition on alcoholic beverages (1920-1933). The petitioners were indicted on charges of possessing and transporting alcohol in Western Michigan. Making the actions of the petitioners’ direct violations of the Volstead Act. The arresting officers searched the vehicle without a warrant and came across “a quantity of intoxicating liquor”. Since this evidence was obtained without a warrant the petitioners motioned to prevent it from being used in court. Claiming that the grounds under which they were arrested and searched with illegal under the Fourth Amendment. This motion was denied by the lower courts. Both defendants were sentenced and incarcerated.

The Sixth Circuit Court of Appeals sustained the convictions and “granted certiorari” to have the Supreme Court review the case. The high court ruled in favor of the lower courts. Stating that probable cause is enough to condone a warrantless search of a vehicle. Mentioning that :

“….it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched….”(Justia)

In other words, a police officer does not need to justify their reasoning for the search of an automobile. The suspicion of circumstantial evidence that may be indicative of legal activity is justification in itself. The actions of the petitioners only aided in strengthening the circumstantial case for the vehicle search. The petitioners attempted to evade police when they were “hailed” to stop. The court holding that officer suspicion of the petitioners transporting contraband was sufficient for the search. Considering the recent Carroll decision, the court’s stance was not an aberration from the trends in the jurisprudence of the era.

Scher v. United States, 305 U.S. 251 (1938)

The 1938 court decision Scher V. United States only serves to preserve the logic held in Carroll and Husty. This case also shares the commonality of the two latter cases as about the transportation and possession of illegal alcohol. Except this case involved the petitioner circumventing tax laws of alcohol. This is notable because the incident transpired after the repeal of prohibition. Scher was charged with two counts of violating section 201, Title 2, of the Liquor Taxing Act (1934).

(U. S. C., 1934 ed., title 26, sec. 1231), is amended to read as follows: “SEC. 3287. (a) Except as provided in section 602 of the Revenue Act of 1918, as amended, all distilled spirits shall be drawn from receiving cisterns into casks or packages and thereupon shall be gauged, proved, and marked by a storekeeper-gauger, and immediately removed into an Internal Revenue Bonded Warehouse. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is hereby empowered to prescribe all necessary regulations relating to the drawing off, gauging, and packaging of distilled spirits; the marking, branding, numbering, and stamping of such packages; and the transfer and transportation to, and the storage of such spirits in, Internal Revenue Bonded Warehouses. “(b) Upon the application of the distiller and under such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, distilled spirits may be drawn into wooden packages, each containing two or more metallic cans, which cans shall each have a capacity of not less than five gallons, wine measure. Such packages shall be filled and used only for exportation from the United States. And there shall be charged for each of said packages or cases for the expense of pro- viding and affixing stamps, 5 cents. “(c) The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulations, prescribe the standards of fill of casks or packages of distilled spirits at each distillery. (Liquor Taxing Act 1934).

Scher violated these conditions under the statute by possessing and transporting distilled spirits missing the required tax stamps. The petitioner was sentenced to a year and a day for his transgression. The Court of Appeals sustained the judgment. The defendant was apprehended in December 1935, after an anonymous tip came in that his car was transporting illegal whiskey. Officers pursued the vehicle from a residence in Cleveland, Ohio where the car was observed to be “heavily loaded”. One of the officers following the car hailed the petitioner for a traffic stop. The officer that commenced the traffic stop asked Scher if he had liquor in the car. The petitioner responded by stating that he had acquired some for a social function. When asked if the liquor tax had been paid on the liquor, he stated that it was Canadian Whiskey. The officer searches the car and found “..eighty-eight unstamped bottles..” of liquor. The car and containers holding distilled alcohol were subsequently seized by authorities. Scher motioned to suppress the evidence procured by the revenue agents in the traffic stop. The Supreme Court ruled that the conditions under which the criminating evidence was acquire were valid. Despite the fact the illicit liquor was seized in a stop initiated in a garage connected to a residence, it was still valid evidence in court proceedings. Differing slightly from the previous warrantless vehicle cases, but remaining within the boundaries established in Carroll.

Brinegar v. United States, 338 U.S. 160 (1949)

The defendant/ petitioner was convicted of illegally transporting alcoholic beverages across the Oklahoma state line. His actions violating Oklahoma state liquor laws, specifically the Liquor Enforcement Act of 1936. How the liquor was exported from Missouri to Oklahoma violated state law and in effect violating the 1936 statute. Federal agents seized the illegally transported alcohol at a traffic stop. The petitioner had a reputation for being in the illicit liquor business and was observed by authorities loading cases of alcoholic beverages into his vehicle. While being interrogated by the authorities initiating the stop admitted to possessing twelve cases of liquor. The petitioner motioned to “suppress” the evidence due to the search being conducted without a search warrant. Effectively claiming that this search violated the Fourth Amendment making the evidence against the defendant inadmissible in court. Based upon the case precedence dating back to the mid-1920s the petitioner was grasping at straws to avoid conviction.

The court held that the defendant made incriminating statements that established probable cause for the search of his automobile. The court also stated that the officer’s knowledge of the petitioner’s illegal activities was not purely circumstantial as he observed the defendant committing a crime. It was also ruled that utilizing the evidence in court was not improper, due to there being sufficient probable cause justifying the search. The court’s overall decision is consistent with the jurisprudence established in Carroll.

Preston v. United States, 376 U.S. 364 (1964)

Three “companions” who had been sitting in a parked car for several hours were arrested for vagrancy. Both occupants of the vehicle were searched for weapons and then taken into police custody. The vehicle the three petitioners had been loitering in was towed and subsequently searched by the authorities’ office site. The police found substantial evidence confirming that the duo was planning to “… rob a federally insured bank…”.The Court of appeals for the Sixth Circuit ruled that this search was outside the bounds of “reasonableness” and indeed violate the Fourth Amendment. Then certiorari was granted to determine if the arrest was valid considering the search by the officers was not.

The arrest of the petitioners was spurred by a telephone complaint to the Newport, Kentucky police department reporting that three men were parked in a car and “…acting suspiciously…”. Four police officers were dispatched to respond to the complaint. Upon questioning of the police, the men in the suspiciously parked car provided questionable answers. All of the men appeared to be unemployed and only possessing a meager sum of money. One of the individuals in the vehicle claimed to lawfully own the car, but could not produce a title. Police decided to arrest the occupants and then engage in searching the vehicle afterward. The officers found paraphernalia[PC1]  and other evidence linking the occupants to a scheme to rob a bank “fifty-one miles” away from Newport.

As bleak as it may seem for the petitioners, in this case, they end up capturing a big win. The Supreme Court maintaining its fidelity to Carroll end up finding the evidence seized in the search to be “inadmissible”. Since the search was “.. too remote in time and place to being treated as incidental to the arrest…”. Within the corpus of case law post-Carroll, this is the first instance of the 1925 case serving as a reasonable limitation on warrantless vehicle searches. Demonstrating that while arresting officers can conduct a warrantless search of your vehicle. That such an extraordinary privilege is not without proper limits. Making Preston a landmark case in the defense of upholding the Fourth Amendment.

Cooper v. California, 386 U.S. 58 (1967)

The true erosion of the safety net established in Carroll was eviscerated in Cooper V. California (1967). This was the case where the court rejects the condition of a search being appurtenant to a traffic stop or arrest. In the view of Fourth Amendment purists, even the conditions set by Carroll could be viewed as being perverse. At least the Carroll decision attempted to implement a safeguard against extending warrantless searches to the point of being arbitrary. The unfortunate consequence of Cooper was the elimination of the standard of the proximity of police engagement and the search of a vehicle. Serving this one thread eliminates any silver lining provided in the Carroll ruling.

The Cooper Case was a result of the petitioner being convicted on charges of violating California narcotics statutes. However, the evidence obtained against the petitioner was collected a week after his arrest. When his vehicle had already been impounded. The petitioner attempted to cite Preston as grounds for the inadmissibility of the evidence collected from his vehicle. However, the lower court swiftly rejected this claim, suggesting that “… evidentiary error harmless under the State Constitution’s harmless error provision…”. The Supreme Court held that the search did not violate the Fourth Amendment. Since the search was closely related to the arrest of the petitioner.  

Lewis V. Clarke (2017)

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The 2017 case, Lewis V. Clarke , distinguishes the limitations of tribal sovereignty immunity. Especially that liability does not extend to individual actions within the context of “commercial activities”. What is tribal sovereign immunity? Tribal governments much like U.S.-based government entities have immunity privileges shielding officials from ligation. Legal constructs such as Qualified Immunity and Absolute Immunity are examples of common defenses in American caselaw invoked by public officials when facing a lawsuit. Tribal Sovereign Immunity functions in a similar capacity as Absolute Immunity. By definition, Tribal Immunity insulates “… tribal officials and employees..” from compensating for damages “…  and requests for injunctive relief ..”. However, despite the seemingly concrete and concise nature of this definition, there is still room for speculation. Does this doctrine apply to the actions of an employee of a business situated on tribal soil? The Supreme Court’s ruling on the Lewis case guides how logically navigate the intricacies of assigning immunity in the context of “tribal” employees.

The case resulted from an incident that occurred in October of 2011. The petitioner Brian Lewis was traveling on Interstate 95 in Connecticut when he was involved in a motor vehicle collision. Lewis was struck by the defendant William Clarke who was driving a limousine owned by Mohegan Tribal Gaming Authority. Subsequently, Clarke was sued by Lewis for compensation due to injuries sustained in the collision. Citing Clarke’s reckless driving as the justification for damages. Clarke repudiated this claim by filing a motion to dismiss on grounds that trial courts lacked jurisdiction because he worked for a tribal company (Mohegan Sun Casino). Meaning the defendant believed he was entitled to Tribal Sovereign Immunity. However, Clarke’s motion to dismiss was denied and held that he was liable for Lewis’s injuries. In a twist of fate, the Connecticut Supreme court reversed the trial court’s ruling stating that immunity did extend to Clarke as he was acting within his capacity as an employee for a tribal company.

The ruling on the part of the Connecticut Supreme court does bring into question the original intent of tribal immunity. From a prima facie standpoint it appears to be parallel to the privileges allotted to government officials in the U.S. government. The precedence for this protection (regardless of the normative validity) dates back to English Common Law. Does that mean it extends to private businesses incorporated on tribal land? This is a question that the Supreme Court of the United States fleshes out in their decision on the case.

In 2017, the U.S. Supreme Court ruled in an 8 to 0 decision that tribal immunity did not apply to this case. The court reasoned that the fact “… an employee was acting within the scope of his employment for the tribe when the tort was committed was not sufficient to give rise to tribal sovereign immunity”. This is since typically when ascertaining immunity the determines if the compensation is being requested from the sovereign (i.e. a tribal entity). The court expanded upon this reasoning by emphasizing that a lawsuit on an “individual capacity” is only valid against an individual. This logic applies to instances of tribal immunity. Justice Thomas agreed with the ruling, however, citing a different perspective on the reasoning. Stating that tribal immunity does not extend to “commercial activity” transpiring off tribal soil. The late justice Ginsburg suggested that non-tribal members “interacting” off tribal land “… should be subject to general non-discriminatory state laws.” Detailing how the whole court unanimously held that Clarke should be liable for the injuries sustained by Lewis.

Public Trust Doctrine-Part IV: The Aftermath of A Liberated Doctrine

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Part I

Part II

Part III

Since the introduction of the concept of an “unconfined” application of the Public Trust Doctrine the legal construct has been utilized in a diverse number of ways. Typically in a manner that is divorced from its original purpose of preventing public resources from being occupied by private use. For example, preventing a private owner of an interior river from blocking off passage to anyone headed down. This becomes problematic because the operator of the boat is effectively stuck with no means of arriving at his destination. While there are several ways to resolve the issue of the unreasonable blockade, for example treating the river as a club good, at least the original intentions of the construct were limited to a clear concern for the public good. In the years since the Just case, the public interest justification has become more opaque. The overall lack of clarity and formal limitations on the doctrine has led to an appalling erosion of private property rights. Arguably has created a two-tiered system of public interest. On one hand, the doctrine has served to undermine public interest by destroying confidence in the state’s protection of personal property. The Just case is not a dead ringer for being the Public Trust equivalent of Kelo V. New London. However, both are horrifying demonstrations of how the Eminent Domain and the Public Trust Doctrine can be used in a manner that side-steps the Fifth Amendment.

The ruling on the Kelo case was unacceptable. No proponent of private property rights would argue otherwise. At least this illegitimate transfer of property was purportedly done for economic development. While this approach may have been morally and economically flawed, it still had pragmatic intentions. Whereas the Just case aimed to benefit the public interest in a more circuitous manner. Many of the goals of environmental preservation tend to reflect abstract objectives and ecological metrics that are far removed from the concerns of the average person. This does not mean that is not harm imposed by pollution or other ecologically destructive actions are not problematic. Such actions are loaded with externalities and adverse consequences. It is nearly impossible to separate the pragmatic concerns of the conservation movement from its ideological agenda. In reality, conservation should be about voluntary resource management, rather than forcibly separating American citizens from their property. Much of this conflation between political goals and practical environmental concerns is evident in the Green New Deal proposal.

The aftermath of the “liberated” Public Trust Doctrine is evident in the subsequent ruling giving a difference to this uncodified legal norm. It is difficult to conclusively say that using this construct to hold public property is inherently in the interest of the public. Public interest infers that all individual citizens benefit from the policy. In actuality, it operates more as an averaged aggregate of well-being, “… following utilitarian standards…” (p.159). The individual who is forced to surrender their property for the sake of environmental objectives without compensation is worse off. The matter is only compounded by the fact that the decision to transfer private property for public use is made by a third party with no rights to that property (p.159). This third party is the judges interpreting the law on the behalf of the state. Having the conditions under which this amorphous construct can be applied in case law does little to inspire that individual property rights will be considered. Especially because the metrics and even definition of public welfare are as unclear as to the constraints of the Public Trust Doctrine.

National Audubon Society v. Superior Court (1983)

The National Audubon case colloquially knows as the Lake Mono case does not directly address the issue of the conflict between Public Trust and private property. As the dispute was focused on the interests of the municipal government of Los Angeles and environmentalism goals. But it demonstrates another graduation in the flexibility of the interpretation of the doctrine. The city of Los Angeles was diverting from tributaries to Lake mono, as prescribed under state law (p. 196). However, the National Audubon Society decide to challenge the validity of these water withdrawals from various tributaries. Why? As water levels began to fall it started to have adverse consequences for the wildlife native to the ecosystems surrounding these bodies of water (p.196). Justifying questioning these redistributions of water and suggesting that the state was neglecting its Public Trust responsibilities.

What makes this case significant to expanding the scope of the doctrine is that it was no longer being limited to navigable bodies of water. There may have been some hints of this departure from this unspoken restraint in Just. But the “Lake Mono” case formally cements this shift in jurisprudence in case law. The California court ruled :

“ The purpose of the trust; the scope of the trust, particularly as it applies to non-navigable tributaries of a navigable lake; and the powers and duties of the state as trustee of the public trust (33 Cal. 3d at 434).. (p.197)”

The above statement alone arguably is a departure from the traditional interpretation of public trust. In terms of managing navigable waters ways, the management of tributaries is an adjacent concern. Such an expansion appears to be a mild form of judicial mission creep. This 1983 ruling went further in its claims of further broadening the doctrine. Suggesting that the doctrine isn’t locked into merely sticking to the “traditional triad” of navigation, fishing, and commerce (p.197). The doctrine needs to be made amendable to the growing and ever-changing concerns of public welfare (p.197). Opening up the doctrine to more progressive and looser applications in the broad sphere of public interest. Without a precise definition or sound metrics to assess whether these open applications are benefiting the public, at best advocacy of the doctrine’s expansion is audaciously careless. Making any absolute claims of benefits spurious. Particularly when the outcomes of the unconstrained doctrine only benefit a select few.

The Expansion into Recreation:

If it wasn’t concerning enough that the doctrine was being applied to opaque conservation goals, the foray into recreational justifications only serves to push the doctrine one step closer to being a fixture of arbitrary law. In Montana Coalition for Stream Access v. Curran, it was decided that the public has the right to have access to any body of water in the state for recreational purposes (p.197). This serves to go beyond the original Common Law and Roman Law precepts of the doctrine. However, it does not go so far as to invalidate the navigability requirements of the submerged lands covered under the doctrine (p.197). In the years since this 1984 decision, the recreational justification for invoking the doctrine has continued to be used. However, over two decades later in 2008 test of navigability requirement comes under scrutiny. In a disturbing twist, in Bitterroot river protection Ass’n V. Bitterroot river Conservation Dist., which expanded public right to recreational use of water for non-navigable and private water sources. Citing the Steam Access Law “… enacted in response to Curran…” for justifying this expansion into privately owned bodies of water (p.198). This byproduct of an expanded Public Trust Doctrine defies even the most conventional Samuelsonian definitions of public goods. A privately owned body of water that is non-navigable is most certainly excludable. Would it be appropriate to allow strangers to use the Koi pond in your backyard for “recreational” purposes? I believe that most people would oppose such an encroachment on private property rights. Reading the Bitterroot River decision without any context and could lead to such obtuse conclusions.  

Public Trust Doctrine: Part I

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The Public Trust Doctrine is a legal concept that has its basis in ancient Roman law and English Common Law. Being a legal construct, it has been subject to interpretation causing it to evolve over the centuries. Arguably some of the most radical shifts in its judicial application have occurred in the nineteenth and twentieth-century American courts. Shapeshifting from a doctrine used to prevent monopolization of public waterways to a blunt instrument wielded by the interests of the environmentalism movement. Subordinating water usage rights and other forms of private property to loosen conditions that public trust law has been applied. Some scholars such as Joseph Sax perceiving a contextual application of the concept as being too narrow. Believing that having more malleability with the application of the doctrine will help sustains its core function (p.4). This function being putting common resources to the best use for society. Rather than allow these resources to be sold off and alienated by private interests.

At first glance, Sax’s assessment of the doctrine may seem fair to those who are concerned about economic equality. The keen insights of legal scholar Richard Epstein provide an interesting perspective on the Public Trust Doctrine. He essentially likens the concept to be an inverted version of Eminent Domain law (p.8). Meaning that the Public Trust Doctrine mitigates private individuals from commandeering public lands without just compensation. Implying that an individual for example buying public land should not be doing so below the market price. Mirroring how just compensation is an implied right in any takings case as depicted under the Fifth Amendment of the Constitution.  In a society where taxes have been collected this premise makes sense. As taxpayers being the primary contributors to public funds, they own all public assets. In instances, where the costs of selling a public good to a private party outweigh the benefits it can be disputed whether the asset(s) should be sold.

Epstein successfully demonstrates the reciprocal nature of both Eminent Domain and the Public Trust Doctrine. The reason why both legal concepts parallel each other is the fact they are at their core interpretations of property rights. Both provide a framework for the conditions under which property can be transferred from one party to another. One describing the contingencies under which private property can be transferred for public use. The other presenting the conditions under which public property can be alienated for the use of a private party. If we are to hold property rights in high esteem both are subject to the conditions of the Takings Clause.  Unfortunately, both concepts wavered in front of protecting property rights. Proponents of a liberated form of the Public Trust Doctrine have no problem utilizing its amorphous nature to circle property rights to achieve environmental objectives. Theorists such as Sax show little concern for this erosion of property rights. Anything even remotely of a Classical Liberal disposition can be nothing but horrified by the diminished regard for private property in the American legal system.  In terms of the property being misappropriated to satisfy environmental objectives, it is easy to point to Sax being the linchpin for this decades-long trend.

It is not fair or intellectually honest to point all of the blame on Sax, technically the unfettered application of the doctrine began back in the nineteenth century.  Formulating from the seminal case Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) considered by many to layout the rubric for the modern American interpretation of the doctrine. However, legal scholars such as Richard J. Lazarus point out that there was a precipitous change in the interpretation of the legal doctrine in the years following the 1970s (p.3). Displaying that there was a radical shift in the jurisprudence surrounding the doctrine that happened to coincide not only with the insights of Sax but also with the nascent period of the Environmental movement. Surmising that the environmental movement hastened the development of the doctrine isn’t at all outlandish. Especially considering it has traditionally been utilized as a legal construct to manage public waterways. Shedding some light on why property rights and environmentalism have historically been at odds. Truly prudent environmentalism manifests itself in sound resource usage and allocation. This can only take place in a world where property rights are enforced. Not nullified through arbitrary and tilted interpretations of legal traditions. Particularly ones that have never even been fully fleshed out in statutory law that take on capricious attributes. Merely shift due to a change on the whim of social trends.

If good resource management aligns itself with good economic policy, why couldn’t more market-friendly approaches to environmental problems be proposed as a compromise? At the very least devise compromises that respect the ownership of private property. One such compromise could entail a theoretical statutory codification of the Public Trust Doctrine. This would mandate compensation regardless of conditions under which land is transferred by the state. While the author is not completely comfortable with the idea of formal written law, this would be a pragmatic solution for two reasons. First off, it would operate as a formal constraint against loose interpretations of the Public Trust Doctrine. Second, it would demand compensation to those who were experience damages by the transfer of a property. Through a formal revision, not only can the doctrine be constrained to its original purpose it also will serve as a safeguard against unjust takings.