I get the impression that some mainstreamers and statists of various stripes think we libertarians sometimes engage in exaggeration or hyperbole in the terms and labels we apply to the state–when we deem the US government to be a police state, its agents “jack-booted thugs,” when we call it criminal or fascist, when we refer to the state and its agents as evil, as overlords. Let’s take just one of these: the idea of the state assuming the role of our “overlords.” Daniel Klein has an ingriguing new article out in the latest Independent Review, “Against Overlordship“. Here’s the Abstract Klein sent me:
For social democrats, the state is to the community what the landlord is to the apartment complex or the owner is to his hotel. The notion that all social affairs within the polity are enveloped within a contract with the state, which owns some kind of encompassing substructure upon which all else within the polity depends, is the unspoken premise of social democracy and progressivism.
It’s worth a read, and it called to mind something I wrote in a footnote to a law review article in 1994 (now expanded into a book: Louisiana Civil Law Dictionary, Quid Pro Books, 2011; also discussed in this post):
It is interesting to note one (only apparent, as will be seen below) theoretical difference between the civilian and common law conception of real property ownership, concerning the right of the sovereign (king or state) to ultimate ownership of land. In Louisiana, “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” CC 477. Lands in the thirteen original American colonies were held in tenure, however, with the king as the ultimate lord and owner of the land. Cornelius J. Moynihan, Introduction to the Law of Real Property, 7-8, 22 (2d ed. 1988); see also Roger A. Cunningham, William B. Stoebuck, and Dale A. Whitman, The Law of Property , Chapter 1 (West 1984). “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist, while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial,’ or otherwise declaring that tenure was abolished.” Cunningham, et al., at 25 (footnotes omitted). However, “In the remaining states it would seem that lands are still held in tenure of the state as overlord.” Moynihan, at 23. “Throughout the rest of the United States, it seems clear that tenure never existed.” Cunningham, et al., at 25 (footnote omitted).
However, despite this theoretical difference between civilian and common law ownership, at least in some states such as Pennsylvania and South Carolina, Moynihan, at 23, “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple, tenure would appear to have little or no practical significance. For all practical purposes, one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land.” Cunningham, et al., at 25 (footnotes omitted).
It must be pointed out that, in reality, in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. To say that land is owned “allodially” is a fiction. For land is subject to expropriation by way of eminent domain. See, e.g., La. Civil Code 2626 [now La. R.S. 9:3176]:
The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.
Article 2627 [now La. R.S. 9:3177] further provides:
If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.
Furthermore, it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i.e., property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Tenure, then, exists after all, in all fifty states, and the theoretical difference pointed to above is not really a difference at all.