For those of you not subjected to reading page after page of dry, dull court cases, there is a concept in the law of property that most people encounter in their first year of law school called "adverse possession." When I first read about this stuff, I was absolutely blown away. It seemed comepletely antithetical to everything I had assumed about ownership and property as it functions in society. You see, adverse possession (at least when grossly oversimplified) works something like this: Let's say this guy Joe owns a piece of land in Alaska, but Joe live in SC. Then this guy Sam, an Alaskan native, wanders onto Joe's Alaskan tract of land and decides he wants to live there. Over a couple of years, Sam builds himself a little hut, a garden, and some other basic improvements, and happily lives on Joe's tract of land for some time. Joe, meanwhile, is stuck in SC and can't get to his Alaskan tract of land. He has no idea Sam is living there. Then one day, Sam's buddy tells him about this thing called "adverse possession." He tells Sam that he can go down to the courthouse and file for quiet title on the land and it will be his. Sure enough, Sam does this and, like magic, the title to the land is in Sam's name. Unbeknownst to Joe, he has lost his Alaskan asset. And all of this, given certain technicalities that must be met, is completely legal (save the time that Sam was trespassing, but that is forgiven after a set period runs and Joe does not eject Sam).
Now, when I first read about this stuff, I was taken aback. How is it that, in America (he said with a thick Texan accent) some vagrant can squat on your land long enough and then it just becomes his? Well, the justification is that Sam is making more efficient use of the land and, because Joe did not care enough about the land to even discover that Sam was there, Sam is more deserving of the title. Whether or not you agree with this concept matters very little. It is settled law in every state in this country (though the requirements vary from state to state).
But I don't want to write this post about adverse possession- at least not the legal variety. Nope, I'm not talking about property law at all. I'm talking about adverse possession at the very top of the American political system. I'm talking about presidential adverse possession. You see, apart from reading about the mundane legal quandaries that people find themselves in, I'm also reading about constitutional law. And recently I have had the distinct pleasure of reading a series of cases dealing with executive power and its interplay with the other branches of government. Most notably, I just read the recent "enemy combatant" cases, which involve American citizens that were picked up either in Afghanistan or while returning from Afghanistan. Of course, these are not ordinary American citizens. These are people who took up arms against our own armed forces and at least appeared to fight for the Taliban. My gut says "hang'em high." Problem is, that my brain just finished processing their court cases, and he's not so sure.
Don't get me wrong, I'm in no way coming out in support of terrorism or defecting to the enemy, or anything like that. No, that would be way too interesting. Nope, I'm talking about procedure and governmental structure. Things that work in the background of cases like these that have way more impact than a lot of people realize. See, neither of these two cases that I read had anything at all to do with establishing whether either of these guys was a bad guy- that was established well before either of these cases got to the Supreme Court. These cases revolved around whether or not these people would be subject to a trial by jury (as is guarrantied to all citizens of the United States in the Constitution) or to a special military tribunal.
Turns out, the Supreme Court isn't sure. Neither am I. See, as much as I scorn the President's policies, and as much fault as I find in a war on anything in the abstract, I can't seem to countenance being very polite to a couple of guys who decided to fight against their own country. At the same time, I'm a big fan of the Constitution, particularly the part about allowing all citizens to have their day in court. Indeed, James Madison argued that, as long as habeas corpus remained robust and undeniable, that we didn't even need the Bill of Rights. All that could be sorted out in court. And I'm a firm believer that when it comes to things like criminal charges, people deserve all of the protections that the legal system currently affords (at least most of) them. But this brings me back to my gut- these guys could die of gonnorhea and rot in hell as far as I care. So, despite my normal, opinionated tone, I'm going to take a back seat here and admit, I don't know the answer. At least not yet.
(P.S. I know that no one who reads this will have any idea why I included that first part about adverse possession...it will become clear when I post the conclusion to this in a couple of days...but first, I want my reader(s) to tell me what you think about all of this.)
9 comments:
Good to see you back on the trail of truth and justice, Blue.
Adverse possession means what some of us old timers already knew, namely that the govt owns all land and can do with it as they please. The example you gave was adequate, but if I'm not mistaken (and usually I'm not), if your neighbor parks her (gender inclusive) vehicle on any part of your property and you don't challenge her, and this goes on for X amt of time, then your neighbor can claim that little spot as her own.
Now, as to your other point about terrorists, I had a professor in the madrassah who used to say that whenever a law is passed or a precedent is set, then it is impossible to reverse them. While we all might think that it's a good idea to snatch enemy combatants, and 'hang 'em high' we must remember that Hillary has a shot at the big house. We certainly don't want her to have those powers, now do we?
LM- I'm not sure about parking a car, but, for example, if a neighbor builds a deck that is partially on your property and you do nothing about it for the statutory period, then, yes, your neighbor may claim title to that property, provided she meets certain, jurisdictional conditions.
As to the terrorist point, first: precedents can change. A good example of this happening subtly is the change in interpretation of interstate commerce that came with the Rehnquist court. After FDR ensured that the Court would begin to reinterpret his New Deal legislature as Constitutional, the Court adjudicated interstate commerce very expansively for many many years. It was only when commerce legislation began to encroach on traditional state law domains (health, welfare, morals) that a new court, lead by Rehnquist, began to strike down laws that it deemed stretched the definition of interstate commerce too far (in anticipation of the gross oversimplification that is likely to follow in the form of a FDR = liberal, Rehnquist = conservative type of comment, be advised that the Supreme Court during the Great Depression was very conservative in their politics and it was only after FDR threaten to increase the size of the court and add justices sympathetic to his political motives that the Court "magically" began to find New Deal legislation constitutional).
Second: Why should we worry so much about whether Hillary might take over the white house when we have a perfectly good example of an egregious usurper of individual rights currently serving?
Oh yeah, and it isn't so much that the gov't owns all land, its just that the gov't has the right to all land, provided it is needed for public use. To my best estimation, this view came to prominence in America mainly because we needed a way to take the lands of Native Americans and redistribute them to settlers in an orderly and, ironically, egalitarian fashion. Adverse possession builds on this and adds a Lockean labor theory of value (man owns his labor, therefore man owns the product of his labor).
trampled by lambs and pecked by the dove huh? damn, now you've figured out my identity. who else do you know who 'nose' the derivation of that lyric.
Screw 'em.
There should be a clause, or some other legal jargon, enacted somewhere stating that people who demonstrate direct, gross intent against their government should face different judicial consequences. By gross intent I don't mean not filling out a mandatory survey that you get in the mail. I mean GROSS intent: spies, militias, terrorism and your occasional seceding state. (Go South Carolina) In one word....treason.
Speaking of the Civil War, does anyone know how or if they tried Robert E Lee for anything after the war?
Patrick, Blue South, et al,
Note the reason for standing up for the Constitutional rights of terrorist (remeber we are talking about suspected terrorists) has nothing to do with liking, supporting or wanting to coddle terrorists. It is about standing up for those rights and liberties that we believe are important to a free society. If "terrorits" are defined by the government, and "terrotists" loose their constitutional protections once being defined as such, then your actual protection from the government is ziltch. I know, I know "they would never do that," however if that is your only protection from the government - "they would never do that," then you truly have no protection from the government at all. If we only uphold our beliefs in Constitutional rights when we deem it convenient, efficient or easy we are truly saying we have no values at all. I think many here may remeber the old saying about what good is it to be nice only to people who are nice to you (almost everyone does that)? it is hard to be nice to people are NOT nice to you. If you really believe in being nice, for instance, that it is an important and a good thing to do, you will do it to both sets of people (those nice to you and those who are not). If you believe being nice is a great thing to do when it fits in conveniently with your situation then you don't actually believe in courteousness, you believe in convenience. The real tests of our Constitutional values and principles of liberty is do we stick to them when it is hard and when it is not conveneient? Thus far we have not stuck to those principals. And we have shown, I think unfortunately, but pretty unsurprisingly for today's day and age, that we value ease and convenience over ideals and liberty. However, this is what I think most of America seems to want, so to say lamentable is me being selfish perhaps.
BlueSouth thanks for posting on a thought provoking and difficult political philosophy issue - that obviously has many real world consequnces for today. I know exactly what you mean about your gut vs. your brain on this issue. I have those same feelings, but lest we forget we instituted governments to make sure we think about situtations with our heads and not our guts. Of of course, an one worth their medal is full of a lot of both.
In light of Mr. Dogood's comments I think it is also worth noting the problematic issue that arises when the executive branch (or anyone in the government) gets to 'declare' who is a terrorits for purposes of abridging their rights. Don't forget VP Richard Cheney said this past Sept-Oct on more than one occasion that voting for Democrats and certain Democratic candidates constituted and act of terrorism. As he does smile too often, it is probably safe to assume he said it with a straight face.
Ahh, excellent point (which leads into the 2nd part of this post, forthcoming in a couple of days)
Sorry to get ahead of you Blue, anticipation is building so let's have it, nice blog by the way.
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