A Case for Property Tax Elimination from 1795

The Pennsylvania legislature, in an attempt to settle a land dispute between state residents and out-of-state purchasers from Connecticut, passed a law vesting title to the disputed property in the out-of-state purchasers. State residents with bona fide claims were compensated with an equivalent tract. Several Pennsylvania residents sued, claiming that the legislative resolution of the land dispute deprived them of their vested rights and right to a jury trial.

Justice William Patterson, serving on the Circuit Court of the United States for the Pennsylvania district, supported the Pennsylvania claimants. His charge to the jury defended the judicial power to declare laws unconstitutional. Patterson then concluded that the Pennsylvania “quieting and confirming act” violated the
constitution of Pennsylvania and the Constitution of the United States. Vanhorne’s Lessee may be the first instance in which a federal court held state legislation unconstitutional.

There is even a greater importance to this case because Justice William Patterson mad a case for property rights that, I believe, can and should be used against continuing to allow our homes to be held hostage to this ominous tax.

Let’s start with a little background.  Pennsylvania’s first constitution came just a few months after the passing of the Declaration of Independence.  In September of 1776, this became the rule of law in Pennsylvania.  In 1790, a constitutional convention was held in Pennsylvania to amend the constitution bringing it more inline with the support of the Federal Constitution.  Just as it does today, both the 1776 and the 1790 Constitution included a section specifically titled “Declaration of Rights” where the individual rights of all Pennsylvanians were included as part of the governments responsibility to protect.

After hearing the case, Justice Patterson gave a recommendation to the jury as to how this case should be weighed and that included an in-depth analysis of the importance of the rule of law in the Constitution.  Any law, he warned, outside of the Constitutional rule of law should be deemed void.

As part of admonition to the jurors Justice Patterson said:

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are legislatures? Creatures of the constitution; they owe their existence to the  constitution: they derive their powers from the constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the constitution is the sun of the political system, around which all legislative, executive and judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the constitution, is absolutely void.

Justice Patterson then defined the Constitutional limitations of the legislature in the creation of any act that would violate the protects guaranteed in our Constitution.  He explained to the jury the issue at hand with regards to the case.  As I read this I was struck with the harmonious indictment of the law and with the property tax as it stands today, especially with regards to the school property tax.  Justice Patterson said:

The proprietor stands afar off, a solitary and unprotected member of the community, and is stripped of his property, without his consent, without a hearing, without notice, the value of that property judged upon without his participation, or the intervention of a jury, and the equivalent therefor in lands ascertained in the same way. If this be the legislation of a republican government, in which the preservation of property is made sacred by the constitution, I ask, wherein it differs from the mandate of an Asiatic prince? Omnipotence in legislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the legislature. Wretched situation, precarious tenure! And yet we boast of property and its security, of laws, of courts, of constitutions, and call ourselves free! In short, gentlemen, the confirming act is void; it never had constitutional existence; it is a dead letter, and of no more virtue or avail, than if it never had been made.

This case, which took place 223 years ago, includes a description of the way the property tax now functions.  While it deals with an exchange between Connecticut and Pennsylvania, the same principle apply when it comes to the individual rights of property ownership.

The Constitution, which created the General Assembly, which in turn created and gave certain authority to our school districts where the proprietor (property owner) has little say in the burden of taxation being placed upon them.  They are outside of school district contract negotiations and play no role in the consent of the assessed values attached to their properties as these come through appointed agents of government, not elected by the people so that the value of their property is judged by an appointed force without the participation of the property owner or the intervention of a jury.   As a result we find home-owners stripped of their property, without their consent and without a hearing.  Justice Patterson declared that such omnipotent powers over our right to property is not Justice, it is Despotism.

When the opinion for the case was written, The Judge read from the 1st. 8th. and 11th articles of the Declaration of Rights in the Pennsylvania Constitution.  The 1790 Constitution read as follows:

Declaration of Rights: Section 1: That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.

Declaration of Rights: Section 8: That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures: And that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.

Declaration of Rights: Section 11: That all courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law, and right and justice administered, without sale, denial or delay. Suits may be brought against the commonwealth in such manner, in such courts, and in such cases, as the legislature may by law direct.

It is important to note that each of these protections of our rights to property are still a part of our Constitution after all these years.  Today they are found in Article 1, Section 1, 8 and 11, the same sections as the 1790 Constitution.  I would add to this argument Section 9 which reads:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.

Keep in mind that when the law of land violates other aspects of the Constitution, Justice Patterson declared that such laws were void.

After citing the Constitutional reason that the law passed by the Pennsylvania Legislature was unconstitutional he wrote the following:

From these passages it is evident; that the right of acquiring…property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labor and industry. The preservation of property then is a primary object of the social compact, and, by the late constitution of Pennsylvania, was made a fundamental law.

Let that sink in.  The preservation of property is a primary object of the social compact (the reason for the Constitution and the government created to support it) and since these rights are still affirmed in our Constitution that it is still the legislators RESPONSIBILITY to uphold these principles of the sacred and inherent right of property which is routinely ignored and violated under the current abuses of the property tax, especially with regards to the current state of the property tax.

It should be added here that the school district boards are not governing bodies.  While they have certain authority to govern their schools, they have no real governing authority outside that limited realm.  The school board has no authority over our homes in any other realm except for the purposes of taxation and even that power should be questioned.

The school board is a created body within government which should, like all other created bodies within government, be devoid of any authority to independently tax of have any control over our property whatsoever.  This then calls into question the General Assembly’s action of granting such authority to the school district from the outset.

In my opinion, the school districts should require the consent of the governed, either through referendum or through granted authority from actual elected governing bodies at either the Local, County or State level before that can increase any tax burden on the residents.

I have cited this case in this blog to explain that the right of property was once highly esteemed in this country as was an important part of the founding principles in this nation.  The growing abuses of these rights stand in direct opposition to our founders in their intent and purpose.

That some may look at the above and attempt to refute what is written here demonstrates how far we have gone from the intent of our founders when it comes to property rights of the individual and the governments responsibility to protect those rights.

IN the debate to eliminate the school property tax, we often hear that property taxes have been around as long as their has been civilization and there is some truth to that.  However, the school property tax has not.  We cannot compare our obligations and the property taxes from the elected county and local municipal taxes, where such constitutional powers have been granted to the school districts.  They are different types of bodies, one is an elected governing body and the other, although elected, has now powers of governing in our community outside their limited functions as a school district.  They are no different from other created bodies within government who have no such taxing authority over us.

I’ll close with these words from Justice Patterson regarding this case:

But admitting, that the Legislature can take the real estate of A. and give it to B. on making compensation, the principle and reasoning upon it go no further than to shew, that the Legislature are the sole and exclusive judges of the necessity of the case, in which this despotic power should be called into action. It cannot, on, the principles of the social alliance, or of the Constitution, be extended beyond the point of judging upon every existing case of necessity. The Legislature declare and enact, that such are the public exigencies, or necessities of the State, as to authorise them to take the land of A. and give it to B.; the dictates of reason and the eternal principles of justice, as well as the sacred principles of the social contract, and the Constitution, direct, and they accordingly declare and ordain, that A. shall receive compensation for the land. But here the Legislature must stop; they have run the full length of their authority, and can go no further: they cannot constitutionally determine upon the amount of the compensation, or value of the land. Public exigencies do not require, necessity does not demand, that the Legislature should, of themselves, without the participation of the proprietor, or intervention of a jury, assess the value of the thing, or ascertain the amount of the compensation to be paid for it.

 

 

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