Slide Set Two:

Introduction to the Law1

Tonight – We Will Speak About:• Part One: Introduction to Course

• General Thoughts on Property.

• Part Two: Property and the Law• Why we need to know about the structure of the

law in order to really understand property.

• Part Three: Exercise• How laws are made – The legislative process

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Property is a Fundamental Right

• Property is a foundational element of all law.

• To truly understand property, it is necessary to think of it in terms of a collection of rights, not a collection of things.

• Property rights are the very lynchpin of our liberty: They form a fundamental element of our freedom.

• Under our system of laws, property rights reside in the individual: They are personal and unique.

• Long recognized as inherent to our humanity, our right to exclude, possess, use and transfer private property, is a quintessential component that defines our modern society and its quality of life.

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Property is a Fundamental Right Continued

• Think about freedom and you ultimately get back to property rights.

• The unrestrained use and enjoyment of property is ingrained in our very being as Americans.

• Recognize property rights, and you promote freedom.

• Protect property rights and you facilitate liberty.

• Take away property rights, and you take away an individual’s freedom.

• Limit property rights, and you limit an individual’s liberty.

• Restrict or impair property rights, and you diminish a person’s quality of life.

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The Founders View of Property

• Those who crafted our nation held the philosophical principle, and the system of laws they developed reflects the view, that property rights are sacred.

• These founders firmly understood that the protection of individual private property rights was one of the most important factors to building a free society.

• They knew, if you want freedom, you better guarantee property rights, and the people’s ability to freely exercise them.

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The Founders View of Property Continued

• James Madison, fourth President of the United States and the principal author of the United States Constitution, as well as the Congressional Sponsor and author of the Bill of Rights, encapsulated this vision when he said:

“Government is instituted to protect property of every sort; as well that which lies

in the various rights of individuals ... This being the end of government,

that alone is a just government, which impartially secures to every man,

whatever is his own.”

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The Founders View of Property Continued

John Adams, our second president and collaborative author of the Declaration of Independence, further amplified this view when he stated:

“Property must be secured or liberty can not exist.”

“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.” 7

The Founders View of Property Continued

Thomas Jefferson, third President of the United States and the primary author of the Declaration of Independence, declared:

"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." “Persons and property make the sum of the objects of government.”

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The Founders View of Property Continued

John Jay, first Chief Justice of the United States Supreme Court, renowned legal scholar and author of the Federalist Papers (with Madison and Hamilton) pronounced:

“It is the undoubted right and unalienable privilege ...

not to be divested or interrupted in the innocent use of ... property. ...

This is the cornerstone of every free Constitution.”

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The Founders View of Property Continued

George Washington, the first President And Presiding Officer of the Constitutional Convention, in Philadelphia said:

“[I]n a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property. ” 10

The Founders View of Property Continued

Alexander Hamilton, Delegate to the Constitutional Convention, author of the Federalist Papers (with Madison and Jay) and first Treasury Secretary of the United States, declared:

“The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased.” “It is the

unalienable birthright ... to participate in framing the laws which are to bind ... either as to ... life or property.” “[T]he

end and intention ... is to preserve ... life, property, and liberty ... from the encroachments of oppression and tyranny.” “What the law gives us an unconditional permission to enjoy,

no person can legally withhold from us. It becomes our property, and we can enforce our right to it.” “In the general course of human nature, a power over a man's subsistence

amounts to a power over his will.”11

The Founders View of Property Continued

The State of Virginia, home of four of the first five presidents, adopted a Bill of Rights on June 7, 1776, written by George Mason, a delegate to the Philadelphia Constitutional Convention in 1787. Section 1 of this Declaration of Rights stated:

"That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and

possessing property, and pursuing and obtaining happiness and safety”

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The Founders View of Property Continued

"All men are born free and equal, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of . . . acquiring, possessing, and protecting property"

William Paterson, Attorney General of New Jersey, Delegate to the Constitutional Convention,and Justice of the U. S. Supreme Court appointed by President George Washington.

The Founders View of Property Continued

American government was created "to acquire a new security for the possession or the recovery of those rights to . . . which we were previously entitled, ... including the right of property, and that "every government which has not this in view as its principal object is not a government of the legitimate kind"

James Wilson, signer of the Declaration of Independence,Delegate to the Constitutional Convention, and a Justice of the U. S. Supreme Court

The Founders View of Property Continued

Our inalienable rights include "first, a right to life; secondly, to liberty; thirdly, to property together with the right to support and defend them"

Samuel Adams, founder Sons of Liberty and the Massachusetts Committee of Correspondence.

The Founders View of Property Continued

"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; and

(3) that we cannot be secure in our property if without our consent others may as by right take it away" John Dickinson, signer of the Constitution.

The Founders View of Property Continued• As can be seen from the above, the founders maintained a clear grasp of the connection between liberty, freedom and property rights.

• They understood that it is the pursuit of property that is the catalyst of freedom, and that a person’s unfettered ability to freely exercise their property rights is the gateway of liberty.

• This reverence for property rights was not a concept of materialism.

• Nowhere in the founders’ writings is the obtainment or maintenance of wealth the focus of their arguments.

• It was not the value of the property that mattered, and it was not the property itself, that the framers linked to liberty.

• Rather, they believed that it was the pursuit of property, and the exercise of the rights thereof, that are the key.

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The Founders View of Property Continued

• When it came to property rights, the founders understood, that it is not about equality of means or outcome, but rather about freedom and equality of opportunity.

• Please note, that although the founders were intellectual giants, they also were, however, reflective of their society’s beliefs as a whole.

• They recognized that so many of their fellow Americans, became Americans, and came to this country, so that they could freely exercise and pursue their property rights.

• Gifted legal scholars like Madison, Jefferson, Jay and Hamilton may have been able to offer elegant, legal justifications for their fundament belief in property rights, but the average citizen too understood and held these same beliefs implicitly.

• As we do today. 18

The Founders View of Property Continued• Unlike the founders, most average citizens don’t express their views on property rights through legal prose.

• Instead, historically, the average person in colonial times spoke with their feet,

coming to America from overseas, in order to seek the free exercise and pursuit of property.

• It is important to understand, that it was this pervasive embodiment of the publically held belief in the importance of property rights, as maintained in all of colonial society, as well as the intellectual philosophy of the founders, that compelled them to form a legal system with a deep reverence for the right to pursue property.• This belief in property rights, and their pursuit, was thereby instilled in the legal institutions and government that the founders created.

• We can see, throughout the Declaration of Independence, the Constitution and the Bill of Rights, that the pursuit of property, and a person’s ability to freely exercise their property rights, is sacrosanct.

• Property rights are thereby a foundational pillar upon which American government is built.

• The law we enjoy today, is a reflection of this dedication to the principle that the pursuit of property, and the exercise of its rights, are indispensable and inseparable from liberty, freedom and the natural rights of man.

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Studying the Law of Propertyas an Adventure in the Law

To start this Adventure we need to know:

What is the “Law”?We need to find out, we need to discover this answer.

And just how do we do that?

Well, we need to learn that good law students, like good adventures and explorers,develop a well earned love for books.

For Books are the treasure trove of answers.

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That is why every really wonderful adventure

starts with a good book

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So Let’s Start with Black’s

• Black’s Law Dictionary is the Gold Standard of Legal Definitions.

• If we need to know a term in the law, a legal definition, we should start with Black’s.

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• And so,

What is the “Law”?

• The “Law” has been defined by Black’s Law Dictionary as follows: “That which is laid down, ordained, or established.

A rule or method according to which a phenomena or actions co-exist or follow each other.

Law, in its generic sense, is a body of rules of action or conduct proscribed by controlling authority, and having binding legal force. …

Law is a solemn expression of the will of the supreme power of the state.”

• Perhaps the simplest description of the Law, however, is that:

“Law is the Rules by which civilization is ordered.”23

The Chief Elements / Components of the Law are:

• Early laws were simply directives from a king or sovereign.

• Modern Laws are Enacted by a Legislature

(In America that is Congress for the Federal Government

and State Legislatures for State Governments)

1. Rules

2. Pronounced, laid down and/or issued by a controlling authority;

3. That are consistent and lasting; and

4. That are enforceable and followed by the governed.

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Modern Laws Include: Constitutions: Both Federal and State

Statutes: Enacted by Elected Legislative Bodies

(Such as Congress or State Legislature)

Case Law: Also known as “The Common Law”

(Case Decisions delivered by Courts)

Regulations: Promulgated by government (Executive) agencies (Agency pronouncements designed to amplify or clarify their authority as provided in statute or constitution)

Executive Orders: Issued by Executive (President or Governor) (Instructions by the Executive to their agencies directing them how to execute a procedure or law)

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Laws as Rules: So when we say that:

Laws are the rules by which civilization is ordered

What do we base their authority on?

Where does that the authority for that Rule Book come from?

It comes from America’s Ultimate Rule Book – Our Constitution26

Our Founders set up our NationThe United States of America as a Representative, federal, Republic.

Pursuant to our United States Constitution,our laws come from our government and the sovereignty or power for ourgovernment rests in the people.

This system is set up by our United States Constitutionestablishes the Rule Book for our Government and its Laws.

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The United States of America A Representative, federal, Republic.

Articles IV and VI of the United States Constitutionexpressly provide:

The United States shall guarantee to every State in this Union a Republican Form of Government … and

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. 28

As a result of this representative, federal, republic:Laws are made pursuant to the following construct:

Federal Government (For All National Laws – Supreme but Limited Powers)

President (Executive) Congress (Legislative) Federal Courts (Judicial)

State Government (For All State Laws – Subservient but Unlimited Powers)

Governor (Executive) State Legislature (Legislative) State Courts (Judicial)

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Federal Government (Separation of Powers and Checks and Balances)

President (Executive) Congress (Legislative) Federal Courts (Judicial)

Supreme Court

US Senate US House of Representatives

US Court of Appeals

US District Court

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State Government (Pursuant to State Constitution – Similar Checks and Balances)

Governor (Executive) State Legislature (Legislative) State Courts (Judicial)

NYS Court of Appeals

NYS Senate NYS Assembly

Appellate Division of NYS Supreme Court

NYS Supreme Court

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Priority of Laws:1. Constitution: Established by Convention of Elected Delegates to provide governmental framework and protections of individual rights, they are supreme to all other laws as interpreted by the Courts

2. Statute: Laws passed (enacted) by an elected legislative body (Congress or State Legislature) and signed into law by the Executive (President or Governor).

3. Regulation: Promulgated by government (Executive) agencies to amplify or clarify their authority as provided in statute or constitution.

4. Executive Order: Issued by Executive (President or Governor) as an instruction to their agencies on how to execute a procedure or law.

Case Law or Common Law -Decisions issued by courts which provide legal rules by: 1. Interpretation of a Constitution, Statute, Regulation or Executive Order, or 2. Clarifying or creating law pursuant to past court decisions.

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To Understand Property,We Must Understand the Law• This is a class on the Law of Property

• One can not have a true understanding the Law of Property unless they have a true understanding of the Law.

• For the two are intertwined and inseparable.

• For to truly understand Law of Property we need to think of Property as a Collection of Rights and unless we have an understanding of the Law it is unlikely we will understand how such rights are derived and protected.

• And thus we start our adventure next time with a history of the law.

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Class Exercise:

Running for Office and

How a Bill Becomes a Law

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Thank you for Coming• Bonus Question of the Day

• For next time – Review Assignments as follows on the Webpage:

• Lecture Slide Set One, Two and Three.• Selected Readings One and Two.• Selected Book Sets One and Two.• Cases and Exercises One and Two.

• We are a hot bench.

• Questions?35