There is No Private Property in the United States

By Hans Sherrer

Revised Draft (June 14, 2007)

MythBusters is a cable television program devoted to debunking commonly accepted myths. A prime subject for MythBusters to tackle is the belief that there is private property in the Unites States. Why? Because contrary to that belief, there is no private property in the U.S.

That statement may only seem novel because the absence of private property is obscured by confusion of the difference between control of property and its “ownership. As Black’s Law Dictionary (8th Ed.) puts it, ‘ownership’ is “The bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing.” (1138) ‘Possess’ is defined as, “… to have possession of.” (1201) While ‘possession’ is defined as, “The fact of having or holding property in one’s power.” (1201) ”

Although there are many nuances, the foregoing definitions clarify that in general terms the essence of “ownership” is a legal claim to exercise a degree of discretion related to the use, possession and conveyance of property. However, that discretion is not absolute. It is subordinate to the interests of governmental organizations considered to have some or complete domain and control over the property. In the U.S. there is private “ownership” of property, but its control is by the government.

A significant way the government’s domain over property is evident is in the imposition and collection of taxes. The U.S. has an elaborate, and in some cases interrelated, system of municipal, county, regional, state and federal taxes. All of these “taxes” are predicated on the idea that the government entity levying the tax has the lawful authority to do so. The basis of that taxing authority is all property owned by a U.S. citizen or business that is either within or without the country is subject to a proprietary claim by the federal government, although a state government and its subdivisions can also have a claim on particular property. The property referred to is not just land, but all money and items of value in a business or person’s possession - up to and including what is in a person’s pocket or purse.

The government’s presumptive taxing authority takes many forms. Just a few of examples are: tax levies on physical land and structures (real property taxes); taxes on the sale of goods or services (sales and business and occupation taxes); taxes on payments made to an individual or business (“income” taxes); taxes on property development (building and community development taxes (often called “fees”)); and taxation on non-permanent items of value in the possession of individuals (personal property taxes) and businesses (business property taxes).

The non-payment of these taxes can have varying degrees of consequence. Those can include fines, imprisonment, liens, forfeiture of property, and even loss of profession accreditation by a state agency.

The key point is that those consequences are all a response to the non-payment of a tax levied in one form or another on real or personal property (including property in the form of money received) in the possession of an individual or business. That means the possessor of the property may have a claim to the property, but it is trumped by the claim of one or more governmental entities that have the authority to levy a tax. This relationship between a property “owner” and the government is somewhat analogous to that between a renter/lessee and their landlord. The landlord’s claim to the property supersedes that of the renter. Only so long as certain conditions are met does the renter/lessee have a limited legal “right” to possess and use the property. However, at some point – after a required payment or fulfillment of some other condition of tenancy is not met – the landlord can exercise their superior legal claim and take possession of the property.

Eminent domain is another way an ‘owner’s’ control of property is subordinate to that of a government entity. The federal government’s power of eminent domain is codified in the Fifth Amendment to the Constitution of the United States, which states no “private property [shall] be taken for public use, without just compensation.” The Fifth Amendment’s caveat that eminent domain is restricted to a “public use” was brought into sharp focus by the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, 545 U.S. 469 (6/23/2005). The Court determined that eminent domain was applicable to any property that could be expected to benefit the public by generating more tax revenue from a better economic use of the property. Consequently, the federal constitution’s eminent domain provision can be used to legally compel the transfer of a property’s title to an “owner” whose use of it is anticipated to generate greater tax revenue – which can include property, income and sales taxes. A government agency determines both the property that is seized, and the compensation paid to its ‘owner.’ Payment of what is deemed “just compensation” for the property may not, however, assuage the negative consequences experienced by the displaced “owner.”

As the foregoing illustrates, there is no direct relationship between the possession of property and the ultimate control over its use. Thus the title to “ownership” of property is a limited grant by the government that only confers privileges of its possession. The ultimate control over the property is vested in one or more governmental authorities. Furthermore, disputes over possession (or the use) of property are adjudicated by a process that doesn’t challenge the government’s status allowing it to directly take control of the property, to force a change of “ownership,” to mandate conditions of its use, or to impose and collect a tax.

A few examples illustrate this. If property taxes aren’t paid, at some point the local taxing authority can initiate proceedings to foreclose and formally take possession of the property. A governmental authority can also typically initiate condemnation proceedings if something about a property’s upkeep is deemed to constitute a public health or safety hazard. Additionally, various local, state and federal agencies can have requirements that must be satisfied before property can be developed, or even structurally remodeled. Furthermore, the “owner” of a rental property may be fined, sued, or even jailed, if laws restricting discrimination, limiting occupancy, or mandating maintenance are not complied with.

Consequently, in the U.S. a title to property or other forms denoting “ownership” effectively constitutes a transferable long-term lease with the federal and/or state government conferring certain limited privileges of its use and tenancy. Since any property “owner” who does not comply with taxing and use requirements is subject to serious sanctions that can include the loss of their tenancy rights, there is no property in the U.S. over which a non-governmental entity exercises exclusive domain. So contrary to the commonly held belief, there is no private property in the U.S.

Understanding that there is no private property in the United States also exposes the lie behind another myth: That the federal constitution and state constitutions protect private property interests. Those documents actually protect the claim to all property by the governments created by those same constitutions. That claim is fashioned by those constitution’s displacement of the position of authority and control over the property from the titleholder who is commonly referred to as the “owner” – to the government. Insofar as those constitutions are concerned, the primary significance of the title of “property owner” is it designates who is responsible for paying the taxes levied on that property, and thus who will be held responsible if they aren’t paid. So the federal and state constitutions function as instruments facilitating the systematic confiscation of private property – not their protection.

Consequently, the federal and state constitutions operate - under the radar screen of general awareness – as diabolical tools of wealth expropriation. That surreptitious function is reminiscent of an episode of the Twilight Zone television series. In the episode titled To Serve Man, an alien race comes to Earth proclaiming peaceful intentions and encourages large numbers of Earthlings to travel to their planet. In their interactions with humans, the aliens rely on a book written in their language that defies translation into English. As a newspaper reporter is boarding a spacecraft headed for the alien’s planet, a co-worker runs to the boarding ramp yelling for him to stop. With the aliens hustling him toward the spacecraft’s door, the woman hollers that the book had been translated. It is a cookbook for humans! Under the guise of friendliness, the aliens were stealthily tricking humans into volunteering as a food source.

So it is that people in the United States are seduced by a combination of the myth of private property and their blind faith in the “goodness” of the federal and state constitutions, to relinquish control of their property to government entities under the guise that doing so contributes to their “life, liberty and pursuit of happiness.” Nothing could be further from the spirit of those words in the Declaration of Independence.