February 5th, 2011

The Egregious Disaster of Eminent Domain


photo credit: SP

Government should not be held to a different moral standard than an individual. Indeed, government is merely an association of individuals who have (explicitly or otherwise) authorized this entity to act in their name on certain issues for which they have inherent authority. Wisely did Ezra Taft Benson say that “the proper function of government is limited only to those spheres of activity within which the individual citizen has the right to act.”

It therefore follows that any aggressive, offensive, or immoral action on my part does not become justified when implemented by the government which only properly operates with the same powers that I possess. If I were to forcibly take my neighbor’s property without his consent, I would be a thief and would rightly be thrown in jail and sued in court. My action would be no less offensive (or subject to punishment) if I had offered the unwilling land owner “fair market value” for his property in the process.

Murray Rothbard was correct in his treatment of this issue:

If everyone had the right of eminent domain, every man would be legally empowered to compel the sale of property that he wanted to buy. If A were compelled to sell property to B at the latter’s will, and vice versa, then neither could be called the owner of his own property. The entire system of private property would then be scrapped in favor of a society of mutual plunder. Saving and accumulation of property for oneself and one’s heirs would be severely discouraged, and rampant plunder would cut ever more sharply into whatever property remained. Civilization would soon revert to barbarism, and the standards of living of the barbarian would prevail.

The government itself is the original holder of the “right of eminent domain,” and the fact that the government can despoil any property holder at will is evidence that, in current society, the right to private property is only flimsily established. Certainly no one can say that the inviolability of private property is protected by the government. And when the government confers this power on a particular business, it is conferring upon it the special privilege of taking property by force.

Labeled a “despotic power” by the U.S. Supreme Court in 1795, this form of legalized theft is literally the power to destroy lives and livelihoods. Interestingly, the Constitution nowhere delegates this authority to, or approves it for, the federal government. The Fifth Amendment’s provision that “nor shall private property be taken for public use, without just compensation” implies some supposed pre-existing power, and constrains its use to cases of “public use”. Black-robed lawyers have repeatedly and emphatically opined that the eminent domain power is inherent in “sovereignty”, “essential” to government operations, and “requires no constitutional recognition.”

Despite the deferential submission to a perpetual expansion of power, the government’s only moral authority lies in protecting the life, liberty, and property of its citizens. Anything beyond that limited and core mission is an arrogation of authority. Far from protecting property, government becomes its primarily violator when forcefully taking what has not been freely offered.

Eminent domain is state-sanctioned theft. This remains true whether the property owner is compensated or not, and regardless of the supposed intended “public use”. The power assumes that individuals are neither sovereign nor property owners, but rather subservient serfs whose presence on “their” land is tolerated unless and until the government says otherwise.

It is unconscionable that the alleged “land of the free” tolerates a system in which politicians can condemn your property, forcibly remove you, bulldoze it, and replace it with any number of things (urban redevelopment, a business, private development, car dealerships, and similar ventures common throughout tens of thousands of recent cases), simply be citing some superficial justification of “public use” or “greater good”, often done in terms of job creation or tax revenue.

Theft of property, whether done individually or under the cloak of government, is incompatible with liberty and free enterprise. Despite its historically assumed connection to “sovereignty”, it should be re-analyzed and ultimately rejected; if government wants property, it should acquire it in lawful and moral ways. Accepting anything else is to justify legalized theft, and thus implicitly consent to all other forms of legalized plunder and aggression.

15 Responses to “The Egregious Disaster of Eminent Domain”

  1. Brian
    February 5, 2011 at 4:05 pm #

    While I enthusiastically agree with Connor’s position on eminent domain when the land is taken for any of the reasons listed here, I’m not sure about the main reason (in my mind, at least) _not_ listed: roads. Can Connor give some good reasons why the government shouldn’t be able to use eminent domain to build roads? It seems he conveniently left out the issue of roads entirely, but I would love to hear his opinion.

    My opinion hasn’t been formed, or at least isn’t firm, on eminent domain for construction of roads.

  2. Connor
    February 5, 2011 at 4:20 pm #

    Well, since I don’t think the government should be involved in roads, that my satisfy your question without answering. :)

    Assuming, however, that the government should build roads (or merely recognizing the current reality that it does), your question is a valid one: should the state be able to condemn my property and force me to prove, simply to build a road that will be used by all of my neighbors?

    My point remains the same with roads. It’s still theft. Now if I owned some land right in the middle of a planned/desired corridor for a freeway, I personally would look for a desirable solution for both parties. I wouldn’t necessarily want to hold up a massive project, nor invalidate all of the other land acquisitions on both sides of me, without any substantive reason. I would likely willingly sell (for a good price), thus turning it into a mutually-agreed upon transaction.

    But let’s say that I didn’t want to sell. Should my neighbors (the collective government power) be able to force my eviction? Upon what moral grounds, natural law, or logical explanation can such be justified? If the government wants to build a road, it should explore avenues where it already owns land, or where it can find willing sellers who will enter into contractual agreements to sell the land once all property along that avenue is similarly committed.

    To grant the government power to use eminent domain for roads is to consent to a power that individuals themselves do not have, and can therefore not delegate. It is likewise a cession that will lead to other uses, both “public” and “private”. Where and how would the line be firmly fixed if such a power was indeed to be justified for roads alone?

  3. Brian
    February 5, 2011 at 6:28 pm #

    “Where and how would the line be firmly fixed if such a power was indeed to be justified for roads alone?” — You just stated the solution. Grant the government power to use eminent domain “for roads alone”. Yes, the power could be abused even with that restriction… Any government power can be abused. It is exceptionally difficult to draw a line on any government power, which is why we have a court system.

    That said, I would love for a city or state to try and see if and how a road system would or could work without any government involvement. That would be a wonderful experiment to see. I’m not yet convinced it would work, but I think it’s an intriguing idea.

    The argument that government shouldn’t have any power that individuals don’t have just doesn’t hold water for me. If that was the case, then the government wouldn’t have the power to put alleged offenders (of any real crime) on trial and, if convicted, behind bars. By “real” crime I mean crimes which are inherently wrong, not crimes that are wrong just because the government says they are wrong. I’m sure there is a word for that (in fact I think I heard it in the movie “True Grit”) but I’m not educated in these things. I believe the government should have the power to put individuals on trial and incarcerate them, else how can it protect the liberties of its citizens?

  4. Brian
    February 5, 2011 at 9:16 pm #

    I do understand that the government could be involved in building roads without requiring the use of eminent domain. It would be interesting to learn if there was a city or state that did or does such a thing.

    I merely brought up the building of roads without government intervention at all because as I said, I find it intriguing and relevant to the topic at hand.

  5. Bryan Kingsford
    February 5, 2011 at 9:20 pm #

    It’s not theft to the extent people voluntarily choose to live under such a government. In other words, an important aspect of individual freedom is the freedom of association and of contract. Your viewpoint would disallow many types of agreements including our very own Constitution, which permits taxation in order to fund authorized activity.

    Somewhat more complete thoughts on this: https://sites.google.com/site/bkingsf/projects/individual-freedom-vs-freedom-of-contract

  6. Brian
    February 5, 2011 at 9:49 pm #

    Some good news about eminent domain… http://www.ij.org/freedomflix/20-5yearslater

  7. J.M Harrison
    February 7, 2011 at 9:30 am #

    A note to Brian:

    A crazy friend challenged me to read Lockes’ Second Treatise on Civil Government last summer, and looking back, I think I can help answer one of your questions.

    “The argument that government shouldn’t have any power that individuals don’t have just doesn’t hold water for me. If that was the case, then the government wouldn’t have the power to put alleged offenders (of any real crime) on trial and, if convicted, behind bars. ” says Brian.

    You DO have the right to punish those who violate your rights. Only, you have voluntarily surrendered that right to the government. It is still yours, however. The government got it from you.

    The reason that the government appears to possess punishing power while the citizens don’t is because the citizens *lend* this power to the government.

    But don’t forget, the power is still in the citizens.

    Locke talks about an original “natural” state of existence, where men are not bound to each other in societies. In that “law of the jungle” environment, if my neighbor violates my rights (or in current vernacular, “commits a crime”) then I have a right to take away his rights. (I:E, punish him. Take away his liberty (imprisonment) or property. (Fining the crook.) )

    In short, without a government, YOU would be in charge of punishing those who violated your rights. If a man threatened the life of your child, it is within your rights to threaten his life. If a man takes your property, it would be perfectly just to take his property in recompense.

    Now, that situation changes when we agree to bind ourselves in government. We agree that men ought to respect each others liberties, and then we tell the government to enforce it. We VOLUNTARILY HAND OVER our “right” to protect our rights, and the government takes care of it. But never forget, this power was originally in the hands of the people. It originated with them, and not the government. (which makes sense, because if a government is a collection of people, how can it have any rights outside of that which the people themselves have? If ten men with a dollar each get together and pool their resources, they will still only all have ten dollars, not eleven. Government is a collection of people’s right to punish in the aggregate.)

    So, when a man is charged with a crime and put on trial, he is actually being punished by the people; for what is the government but the servant of the people?

    Does that help? That’s what Locke says.

    (Wow, thank you crazy friend. I never thought I’d actually use that book in “real life.” :) )

  8. Justin
    February 7, 2011 at 10:25 am #

    How does the power “To establish Post Offices and Post Roads,” specifically Post Roads, in Article I Section 8 fit into this argument? The broad argument could be made that, although roads are used for a myriad of reasons, the primary reason is to transport mail and support the U.S. Postal Service. One could argue, based on this enumerated power, constructing and maintaining roads is a legitimate, constitutional function of government.

  9. James
    February 7, 2011 at 9:03 pm #

    Reminds me of this lady, but lucky for her she wasn’t up against the government. She was up against a private developer. http://www.cbsnews.com/stories/2009/03/20/assignment_america/main4880477.shtml

    Sorry if it’s not fully on topic, but it’s hilarious and I couldn’t resist.

  10. Edward
    February 8, 2011 at 6:23 pm #

    We had our small city condemn part of our farm to give access to a new subdivision. It was a really hard ordeal to go through. I couldn’t figure out what was so important about a private developer that warranted this theft.

    It was made all the more difficult by the city officials acting so pretentious about it. No alternative solution was offered, no negotiations, nothing. Just a letter in the mail informing me that our land wasn’t really ours.

    Hiring an attorney did get the city to at least pay us market value (what they offered initially wasn’t even close to the market) but it didn’t change the fact that it was our farm and we didn’t want to sell the land.

  11. Brian
    February 8, 2011 at 10:32 pm #

    So, it could be argued/said that the government contract that was made by the founders did in fact give up the right to keep land when the government wants it to build a road. The Fifth amendment states in part: “nor shall private property be taken for public use, without just compensation,” which implies that government _has_ the power to take private land for public use.

    If roads aren’t squarely within “public use”, what is?

    By this argument, if the founders gave up their right to hold on to their private property by entering into the government contract known as The United States government, then by definition, appropriation of land for the most narrow definition of “public use” is _not_ theft, no matter how you feel about it today, because we voluntarily gave up the right to hold onto it in certain instances.

    While I personally abhor taking private land for economic development of any sort, it is becoming clear to me now that the current state of affairs in eminent domain actually makes some rational sense, when viewed in light of Locke’s ‘government is a contract’ argument.

  12. Edward
    February 9, 2011 at 9:15 am #

    I think it is important to note that the building of public roads does not justify unlimited use of eminent domain. Or at least you shouldn’t think that just because it is a road that is being built that it is truly in the public’s interest–not just a political favor for private benefit.

    In my case the road that was built through our farm was not really for public use. There was no subdivision to be built unless it had more sufficient access. There was no need for this road unless there was a road and a big subdivision was built. The only person that benefited from the city taking our land was the developer. Only after the developer sold lots and houses were built the road then began to be used to the benefit of the ‘public’.

  13. Richard Stooker
    February 14, 2011 at 8:54 pm #

    Connor, you’re missing the real point.

    It’s NOT your property!

    Sure, you name may be on the land records as the owner, but who maintains those records? The government. You’re just renting it — that is, paying real estate property taxes. Once you stop paying those taxes, they also have the legal right to take the property out of your name.

    So the government can also decide to take it from you if they get a better offer. Or if you’ve allegedly committed a crime.

  14. JJL9
    February 28, 2011 at 4:58 pm #

    A note to Bryan.

    I won’t take the type to respond to your entire premise because it would be an exercise in futility.

    But let me point out the flawed thinking that starts your argument and continues through the whole thing.

    You state, “This may seem like unjust oppression of the minority by the majority, but if such decisions required unanimous agreement, one person would be able to prevent everyone else from maintaining any roads, resulting in oppression of the majority by a minority.”

    You couldn’t be more wrong. The majority can choose to build a road any time they want if they are willing to pay for it. The minority cannot stop them.

  15. Bryan Kingsford
    February 28, 2011 at 10:12 pm #

    To: JJL9

    Thanks for reading the argument. Perhaps it is, “flawed thinking,” but I don’t see the flaw yet.

    It seems to me that your reasoning would prohibit the Constitution and any such agreement in the manner I described. What gives you the right to prevent others from creating such a society?

    To me, recognizing that freedom of contract and association are critical elements of individual freedom resolves the dilemma and maximizes liberty.

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