Abstract
The primary concept underlying the US Constitution is that of a limited government whose powers are both checked and balanced. A case in point is the Fifth Amendment, which limits the exercise of eminent domain in two ways: a taking must be for “public use,” and “just compensation” must be paid to the owner. However, the long line of Supreme Court cases culminating in Kelo v. City of New London has successfully obliterated both of those limitations. Citizens whose private property is taken by the government are not justly compensated, nor are those takings limited by “public use.”
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Notes
- 1.
125 S Ct. 2655 (2005).
- 2.
348 U.S. 26 (1954).
- 3.
Id. at 33.
- 4.
Kelo, 125 SCT at 2671 (O’Connor, J. dissenting).
- 5.
Hernando de Soto, The Other Path: The Economic Answer to Terrorism (Basic Books 2000).
- 6.
See United States v. 564.54 Acres of Land, 441 U.S. 506, 510 (1979); United States v. Miller, 317 U.S. 369, 373 (1943); Olson v. United States, 292 U.S. 246, 255 (1934) (all holding that just compensation requires that the owner be put in substantially the same position pecuniarily as if he would have been if his property had not been taken.).
- 7.
Parker B. Potter Jr., Surveying the Serbonian Bog: A Brief History of a Judicial Metaphor, 28 Tul. Mar. L. J. 519, 521 (2004) (tracing the origin of the term to Milton’s Paradise Lost).
- 8.
Id.
- 9.
Id.; see also Michael DeBow, Unjust Compensation: The Continuing Need for Reform, 46 S.C. L. Rev. 579 (1995).
- 10.
See id. at 87–88.
- 11.
Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 52–53 (1985).
- 12.
Morris v. Pearl Street Auction Co., 22 N.E.2d 740, 741 (Ohio Ct. App. 1939).
- 13.
Walter Block, Herbie the Holdout, Frasier Forum, Oct 1989, at 28–30.
- 14.
If there is any doubt about this, let someone attempt to “hold out” against a governmental condemnatory order and see what happens to him.
- 15.
But is not a duly processed taking compatible with, and even based on, the constitution? Well, yes, at least as interpreted by the Supreme Court. However, as Spooner has shown, this is not a binding document, since no one signed it, and it would be improper to interpret voting, or tax-paying, as implicit consent to the constitution. See Lysander Spooner, No Treason: The Constitution of No Authority and A Letter to Thomas F. Bayard (1870) (Larkspur, Colorado: Rampart College 1966), http://www.lysanderspooner.org/notreason.htm.
- 16.
This is only approximately true, given that the contours of the Rocky Mountains sharply reduce the pathways that can be taken. Some would say that the possible paths would be radically decreased due to this consideration, but they have not reckoned with the tunneling option, to be discussed below.
- 17.
Gordon Tullock, Comment on ‘Roads, Bridges, Sunlight and Private Property’, by Walter Block and Matthew Block, Journal des Economistes et des Etudes Humaines, Vol. 7, No. 4, December, pp. 589–592 (1996); Block vs. Epstein, op. cit.
- 18.
Walter Block and Matthew Block, Roads, Bridges, Sunlight and Private Property Rights, Journal Des Economistes Et Des Etudes Humaines, Vol. VII, No. 2/3, June-September 1996, at 351–362; http://141.164.133.3/faculty/Block/Blockarticles/roads1_vol7.htm.
- 19.
Walter Block, Roads, Bridges, Sunlight and Private Property: Reply to Gordon Tullock, Journal des Economistes et des Etudes Humaines, Vol. 8, No. 2/3, June-September 1998, at 315–326; http://141.164.133.3/faculty/Block/Blockarticles/roads2_vol8.htm.
- 20.
Hans-Hermann Hoppe, Hans-Hermann, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer 1993); John Locke, An Essay Concerning the True Origin, Extent and End of Civil Government, in E. Barker, ed., Social Contract 17–18, (New York: Oxford University Press 1948; Ellen Frankel Paul, Property Rights and Eminent Domain. (Transaction 1987); Michael S. Rozeff, Original Appropriation and Its Critics, September 1, 2005, http://www.lewrockwell.com/rozeff/rozeff18.html; Murray N. Rothbard, For a New Liberty, (Macmillan, New York 1973); http://www.mises.org/rothbard/newliberty.asp.
- 21.
Such as national defense, roads, lighthouses, and courts. For the argument that there is no such thing as a public good, for example, that the doctrine of public goods is entirely fallacious, see Walter Block, Public Goods and Externalities: The Case of Roads, The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. VII, No. 1, Spring 1983, at 1–34; Walter Block, National Defense and the Theory of Externalities, Public Goods and Clubs, The Myth of National Defense: Essays on the Theory and History of Security Production, in (Hans-Hermann Hoppe, ed., Auburn: Mises Institute 2003), at 301–334; Anthony De Jasay, Social Contract, Free Ride: A Study of the Public Goods Problem (Oxford University Press 1989); Hans-Hermann Hoppe, Fallacies of the Public Goods Theory and the Production of Security, The Journal of Libertarian Studies, Vol. IX, No. 1, Winter 1989, at 27–46; Jeffery Hummel, National Goods vs. Public Goods: Defense, Disarmament and Free Riders, The Review of Austrian Economics, Vol. IV 1990, at. 88–122; http://www.mises.org/journals/rae/pdf/rae4_1_4.pdf.
- 22.
Spooner, supra footnote 15; Murray N. Rothbard, The Ethics of Liberty, (Humanities Press, Atlantic Highlands, N.J. 1982).
- 23.
We make another heroic assumption here that B is an innocent party and not part and parcel of an illegitimate governmental undertaking.
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Block, W.E. (2019). Eminent Domain: A Legal and Economic Analysis. In: Property Rights. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28353-7_13
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