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Source link: http://archive.mises.org/16527/who-owns-the-sky/

Who Owns the Sky?

April 18, 2011 by

Many in Congress were troubled by the question of whether the Constitution authorized them to pass such legislation. FULL ARTICLE by Jacob H. Huebert


J. Murray April 18, 2011 at 8:38 am

It’s not all that difficult to comprehend when applying normal ownership concepts. To own land, you have to occupy or maintain it. Anyone who occupies a parcel of land and maintains it becomes the owner, even if someone else claims to be the owner. Ownership of the sky is only possible up to the point the structure or other tall object (tree, flagpole, etc) is able to reach. Above and beyond that point is the same thing as a piece of land just beyond your fence. If it is unclaimed in the proper sense of ownership (merely announcing it’s yours is insufficient), anyone can pass by it unrestricted. You can’t stop someone flying over your property anymore than you can walking past it.

scineram April 18, 2011 at 11:11 am

“The American Bar Association’s Aviation Committee believed that Congress did not possess such authority and advocated a constitutional amendment. Unsurprisingly, though, Congress ultimately decided that it did have the authority to regulate the skies nationwide.”

Phew. Good thing they did not litter the Constitution with trivial thing like aviation regulation, when issues like this are precisely what the Commerce Clause is for. After all,

“it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia.”

BioTube April 18, 2011 at 12:33 pm

Alabama seems to be getting along just fine with its “recount every minutia” constitution.

scineram April 18, 2011 at 4:58 pm

So what?

J. Murray April 18, 2011 at 1:42 pm

Congress can only regulate States as political entities, not locations. State in Constitutional language means the legislative, executive, and judicial branches of individual member-States. The sky isn’t a politicial entity, the last time I checked. And even then, it can only regulate them in terms of commerce with other States, not in relation to internal laws and activities. So, no, there are no implied powers.

Inquisitor April 18, 2011 at 2:19 pm


scineram April 18, 2011 at 4:54 pm

“And even then, it can only regulate them in terms of commerce with other States, not in relation to internal laws and activities.”

Nothing supports this view. The thing regulated is commerce, not the states.

Inquisitor April 18, 2011 at 6:35 pm

Interstate commerce.

scineram April 19, 2011 at 1:16 am

It nowhere says interstate. That was just judicial activism.

J. Murray April 19, 2011 at 6:04 am

OK, fine, let’s use the definition of Commerce as was understood in the 18th Century – trade and exchange. OK, they can regulate the singular act of exchange. That doesn’t mean any activity related in the making of the product, where it’s made, how it’s made, what people are paid to make it, whether people are required to buy it or not, what price it is offered, the identity of the goods traded, or anything else. Just the singular point of trade.

Then we need to use the 18th Century definition of Regulate, not the late 19th Century modification, meaning to make consistent and regular. So, all Congress can do is make sure trade is consistent among the states, to use the actual sentence in Article 1 Section 8.

Banning cross border medical insurance, forcing us to pay into Social Security and Medicare, and “owning the sky”, don’t fall under that category. All of these things make trade irregular and inconsistent and have nothing to do with the actual hand-off of goods, services, and monetary payment.

Seattle April 18, 2011 at 1:51 pm

Many in Congress were troubled by the question of whether the Constitution authorized them to pass such legislation.

Well, that’s a first.

HL April 18, 2011 at 2:04 pm

As always, a good piece by JHH. After reading this a few weeks ago, I couldn’t help but fantasize how much more exciting and fun air travel would be right now if erroneous concepts of property, the rapacious greed of businesses and lust for power of governments hadn’t combined to make it just another hodge-podge of cartels. As JHH has pointed out elsewhere, the same mistaken ideas undergird moronic ideas enshrined in UN treaties on space. Literally, an entire universe of resources will not be tapped in the foreseeable future because of bad ideas enacted into law. We have been impoverished in incalculable ways. Compare that to the relative (though not as much as before!) freedom of the seas.

As Rand might say, progress comes from man going down a new path armed only with an idea. Well, sadly, men who create nothing and who are good for nothing have drafted laws ensuring no innovation will be allowed. No Reardon metal in the air or in space!

Joe April 18, 2011 at 4:41 pm

Besides the air how about the oceans. I guess right now the US Federal Government has control of anything that is 200 miles off shore. Now what happens if and when a oil company drills 200 miles plus one foot? Does that oil company have to comply with the US Federal Government or the UN? Can’t wait for the day when they discover oil deposits outside of the 200 mile limit. I would think that any mineral rights would go to the oil company developing them. Anyway, if and when that time comes I’m sure the Federal government would find a way to collect taxes and whatever they steal now from the oil companies.

Gil April 18, 2011 at 11:10 pm

I thought once you got past such a limit you’re in international waters and thus in Anarchtopia.

cmar April 19, 2011 at 2:52 am

No. All mineral resources outside the scope of 200miles (or continental shelf) are called “common heritage of mankind”. This is soemthing like international communism.

Wikipedia quote:
“first, there can be no private or public appropriation; no one legally owns common heritage spaces. Second, representatives from all nations must manage resources contained in such a territorial or conceptual area on behalf of all since a commons area is considered to belong to everyone; this practically necessitating a special agency to coordinate shared management. Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region, this requiring restraint on the profit-making activities of private corporate entities; this linking the concept to that of global public good.”.

global public good indeed:-)

J. Murray April 19, 2011 at 6:14 am

Which would explain why bluefin tuna are being overfished. Tragedy of the Commons in action.

P.M.Lawrence April 19, 2011 at 12:08 am

There is already some deep water exploitation of manganese nodules by dredging. I don’t know what the situation and precedents are about that.

P.M.Lawrence April 19, 2011 at 12:06 am

Under current rules, there are restrictions on flying kites that weren’t there before. That certainly seems like a “taking” of a ground-based right of occupancy of the sky, even though kites got displaced downwind to be over other ground sites.

newson April 19, 2011 at 5:34 am

more importantly, who owns the ionosphere? haarp. stars wars for grown-ups.

newson April 20, 2011 at 10:56 pm

weather as a force multiplier: owning the weather in 2025.

leviathan owns everything.

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