No other rights are safe where property is not safe.” — Daniel Webster
The Wall Street Fat Cats and criminal conspiracy of bankrolling banksters and corrupt government officials have totally decimated our system of real property ownership in this country. Clear, stable and conspicuous ownership of private property and all the protections that come with it were one of only three key foundations of our entire country. (The third element of American Exceptionalism was Freedom of Expression.) Now that this key component of our national liberty has been destroyed, our entire nation is at real risk.
A primary component of American Exceptionalism was on hard work, ingenuity, building things and reaping the reward for your ingenuity, innovation and labor. That was the economic component of our success. The next link in the chain was being able to convert the fruits of that economic risk and the great reward into something safe, tangible and protected from seizure and attack by government and your competitors. Such attacks frequently happened in all other societies prior America. So our founding forefathers: a) installed entrepreneurship as a primary objective, and b) established private property ownership as a means to secure the rewards of that effort. This profound societal innovation worked and the system was protected until the banksters infected our system with securitization and in so doing destroyed a foundation of American exceptionalism….in order to make this right, we’ve got to go back and reaffirm the basic building blocks.
Let’s begin with a detailed history lesson. This is long, but read these quotes slowly and carefully. Think about our founding fathers (and the women who undoubtedly were their inspiration). Remember those building blocks and those higher values and inspirational goals that we learned about in school. But now go back and read this history and these quotes from the perspective of your adult worldview. Contemplate how these factors impacted your adult and especially your social and economic perspective. Frankly our concepts of government were a bit too abstract when we learned them in school, it’s useful to go back and review them to see how innovative and absolutely essential they are to our daily adult life……
John Locke, the great political philosopher lauded by so many of the Founders of this Nation, stated, `the preservation of property [is the reason] for which men enter into society’ and that `no [government] hath a right to take their [property], or any part of it, without their own consent, for this would be in effect to leave them no property at all.’;
William Blackstone, whose lectures shaped and helped inspire the Declaration of Independence, Constitution, and primal laws of America, wrote: `So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.’;
Samuel Adams, the political writer, statesman, and signer of the Declaration of Independence, declared that our rights included: `First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them.’;
John Adams, diplomat, signer of the Declaration of Independence, and President of the United States, firmly proclaimed: `The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.’ and that `Property is surely a right of mankind as real as liberty.’;
John Adams also affirmed: `Property must be secured or liberty cannot exist.’;
James Madison, author of the Constitution, and President of the United States, announced: `Government is instituted to protect property. . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.’;
John Dickinson, signer of the Constitution, stated: `Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free, without being secure in our property; (3) that we cannot be secure in our property, if, without our consent, others may, as by right, take it away.’;
Thomas Jefferson, the mind behind the Declaration of Independence, and President of the United States, wrote: `The true foundation of republican government is the equal right of every citizen in his person and property and in their management.’ and `The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits.’;
Thomas Jefferson also affirmed: `Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken.’;
Noah Webster, the `Father of American Scholarship and Education’, stated: `It is admitted that all men have an equal right to the enjoyment of their life, property and personal security; and it is the duty as it is the object, of government to protect every man in this enjoyment.’;
John Jay opined: `No power on earth has a right to take our property from us without our consent.’; and
Fisher Ames, framer of the Bill of Rights and Massachusetts Representative to the first four Congresses, said: `The chief duty and care of all governments is to protect the rights of property.’:
Stephen Hopkins, from Rhode Island, in 1764 said, “they who have no property can have no freedom.”
Now think about how insidious and yet how complete the destruction of our right to property has now become in this country. For hundreds of years if anyone wanted to know who had any interest in any property across this country, you needed only walk into the county property recorder and review the records. No need to explain yourself, no need to answer any questions, no need to prove any personal interest in the question, just walk in and examine. All of this changed with the very recent advent of the MERS system. Today no one knows who really owns the interests in millions of mortgages all across this country. And in practical terms, mortgages are effectively ownership of real property. This is especially true in non judicial foreclosure states, but also true given the current climate of very little judicial oversight even in judicial foreclosure states.
So what do you have? As practitioners and advocates see everyday, and as we’ve been warning about for years, shadowy and untraceable entities are taking title to real property all across this country with precious little attention being paid to whether these parties are entitled to this property and even less consideration paid to the consequences of turning title to real property over and conceding fundamental Constitutional rights in the process of doing so. This whole sickening madness has profound Fourth and Fourteenth Amendment consequences, but no attention whatsoever is being paid to those important issues. As a refresher, the Fourth Amendment concerns are the fact that the real party at interest in many foreclosures are components of the federal government while our state law enforcement and judicial agents are implemented as part of the taking. The Fourteenth Amendment issues are the well-documented violations of fundamental rights that permeate the foreclosure process nationwide.
The Ibanez decision is an important push back against the madness and I’m certain there will be many other decisions and developments for years to come that will start to reassert the basic property rights that have been so violated. The problem is that undoing the damage that’s been done is unprecedented. The entire system has got to be broken down before it can be fixed and built back up. But make no mistake, this must be done. We cannot just continue kicking this can down the field and hoping that somehow it will work itself out…it’s just not that easy.
