The Supreme Court Repeals the Constitution

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The political philosopher Murray Rothbard used to say that every principle devised to limit the power of government sooner or later becomes a way to expand it. In the recent Supreme Court decision stretching the power of eminent domain to include redistribution of private property to assist private economic activity, we have another example: the “takings clause” of the Fifth Amendment to the U.S. Constitution.

The clause holds, “[N]or shall private property be taken for public use, without just compensation.” Since, as the Supreme Court wrote in 1926, “It cannot be presumed that any clause in the Constitution is intended to be without effect,” we have to read each word closely. In his dissent in the recent case, ”’Kelo v. City of New London,”’ Supreme Court Justice Clarence Thomas does just that. Parsing the clause with great care, he shows there is no reasonable reading but this: if the government wants to take a person’s property, it may do so only for public use (such as a road) and only if the owner is fairly paid. Thus the Takings Clause was intended to be, Thomas writes, “an express limit on the government’s power of eminent domain.”


Before proceeding I must say that eminent domain assaults the individual freedom that Americans will go through the motions of celebrating on July 4. The very term should make us suspicious in that it tells us that government asserts, according to Merriam-Webster’s Dictionary of Law, “the superior dominion of its sovereignty over all lands within its jurisdiction.” In other words, we live on the land at the pleasure of the sovereign. As a matter of law, this principle is a vestige of absolute monarchy and is contrary to the libertarian spirit of the American founding. As a matter of logic, no “just compensation” is possible in a forced sale of property, because the only just price is the one freely negotiated by seller and buyer. What makes a transaction morally legitimate is not compensation but consent. Eminent-domain cases are distinguished precisely by their lack of seller