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Rights: Property
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Although the Fifth Amendment clauses applied at the time only to the national government, many states adopted their wording into state bills of rights. One needs to recall that the United States is governed under a federal system, in which both the national and state governments have powers. Many states had bills of rights even before 1791, but nearly all of them either added or modified their own constitutions to adopt the intent and even the wording of the Due Process and Takings clauses. The adoption by the states reinforced the high standing of property and its related rights within the constitutional and legal structure of the country. Until the 20th century it was the states, not the federal government, that took the lead in promoting economic enterprises such as roads and canals. The safeguards in the state constitutions ensured that these activities progressed with some regard for the rights of individual property owners.
Most common rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of several basic components—much in the same way that most molecules are ordered arrangements of several chemical elements. The four basic components of rights are known as "the Hohfeldian incidents" after Wesley Hohfeld (1879-1918), the American legal theorist who discovered them. These four basic "elements" are the privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a distinctive logical form; and each incident can be a right by itself, even when it is not a part of a complex "molecule."
What one will not find in the original Constitution is a specific clause overtly affirming all property rights. This was not because the Framers did not value property — recall John Rutledge's comment that "property was certainly the principal object of Society" — but rather because they believed that it would be protected by the institutional arrangements they had created, the selective grants of power to the federal government as well as selective restrictions placed on both the state and federal power. They believed that all individual liberties, including property, could best be preserved by limiting government to some extent, and as a result, the original Constitution did not include a bill of rights.
A specificationist will attempt to dispel any appearance of conflict of rights. For example, a specificationist will say that what is colloquially referred to as "the public's right to protest" is actually, on closer examination, "the public's right to protest, unless the protest would cause serious risk to life or property, or would lead to the spread of a deadly disease, or…" Similarly, the government's right should be specified more fully as the right: "to control what happens on public property, but not to the extent of stopping peaceful protest, unless the protest would lead to the spread of deadly disease, but not…" On the specificationist view, rights never do conflict in the sense of overlapping in a given case. Rather, rights fit together like pieces in a jigsaw puzzle, so that in every circumstance there is only one right which determines what is permitted, forbidden or required. Each right is absolute within its own area, but the area in which each right prevails is elaborately gerrymandered. Rights never conflict: they are always, to use Steiner's phrase, "compossible" (Steiner 1994).
MRT asserts Apple, Microsoft, Real and Adobe have produced billions of these products without regard for the DMCA or the rights of American Intellectual Property owners, actively avoiding the use of MRT's technologies. Failure to comply with this demand could result in a federal court injunction to any of the above named parties to cease production or sale of their products and/or the imposition of statutory damages of at least $200 to $2500 for each product distributed or sold.
That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred.
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