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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Thursday, November 13, 2003

Eugene Volokh on yet another claim for reparations.

The problem here is, on what foundation does the original title to real estate rest? My title to my home can be no better than the seller's title when I bought it; he cannot grant me any more than what he actually has, and if his title was shaky, so is mine. So it runs, from owner to prior owner, back to the original title. This being the San Fernando Valley, the original title, so far as our law is concerned, was (as I understand it) a land grant from the King of Spain to a group of United States citizens of pretty much the entire Valley.

So we have a land grant from the King of Spain. This does not solve the problem, though: How did the King of Spain acquire the right to confer clear title? This is where we get into something it is not fashionable to say: The only means of acquiring absolutely clear title is conquest; any other means is subject to all the clouds of the past.

For obvious reasons, the Enlightenment philosophers did not like this answer, but they also didn't want any answers that would render title to properties in the New World -- confiscated in high-handed fashion -- precarious, so they dreamed up all their "mixing labor with the land" nonsense (which shows up in Volokh's post): Yes, we just brushed the Indians out of the way, but it didn't matter, because they didn't work the land (and let's ignore the instances where they did work the land and lost it anyway). Whereas actual title, in spite of all these Enlightenment circumlocutions carefully constructed to assuage guilty consciences while saving the fruits of their perfidy, rested upon the undoubted fact of conquest by a new sovereign authority, which might then dispose of the land as it pleased. It is an ugly fact, but it is fact nonetheless.

Here's another ugly fact, one that makes lawyers, especially, grit their teeth: So long as one chooses to remain within a legal framework, the sovereign itself is the ultimate authority on all questions, including the disposition of all property whether real or personal; once the sovereign has spoken, all diputes are at an end, however just or unjust the result. Let's suppose I am at issue with someone else over the title to my home. The matter gets tried in the local Superior Court, from which appeal may be had to the California Appellate Courts, thence to the California Supreme Court, thence (if we can manage to work it into a Fourteenth-Amendment claim) to the United States Supreme Court, and finally (provided anyone can get its attention) to our actual sovereign: the seven-part body set out in Article V of the Constitution, wherein lies the power to do anything, for whom all acts are well done. If that sovereign convenes tomorrow on the question, whether Eugene Volokh should suffer an immediate grisly death, he had better set his affairs in order; no gritting of teeth over the plain gratuitous injustice of it all can stay the sovereign's hand, should it choose to stretch it out. So complicated is the process for calling this sovereign into being that it has only been able to manifest itself twenty-eight times, but on the twelfth occasion it arose to address an ugly dispute over realty, which is how we got the Eleventh Amendment: It didn't nullify the result in Chisholm v. Georgia, but it said, there will be no more of this shit, which is why the U.S. Supreme Court now can only hear our appeal on a land dispute if we manage to cast it in Fourteenth-Amendment terms. If we cannot move this sovereign to act, it has effectively endorsed the decisions of those subordinate (more lawyerly teeth-gritting) authorities, which are thus final.

So. Jews were ousted from estates all over Europe centuries ago. Since Volokh blew right by statutes of limitations, we'll ignore them too, though they are fatal. Either these disseizins were private acts at which the sovereign connived (which is, for example, how all the ranchos in the Southwest were whittled away), or they were public acts of the sovereign itself, amounting to conquest. Either way, the new titles were and are undoubtedly good, the old titles utterly extinguished, and the Jews today have no claim. They may hope for grace, nothing more.

-- posted by Clayton 11/13/2003 01:46:00 PM

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