Technically, "Eminent
Domain" is constitutional. The U.S. Supreme Court has observed:
'The Fifth Amendment to the Constitution says "nor shall
private property be taken for public use, without just
compensation." This is a tacit recognition of a preexisting power
to take private property for public use, rather than a grant of new
power.'
Courts have held nearly unanimously that "just" is defined
by the government. It has to be this way, because the government's goal
is "to take private property for public use."
The owner of the property can argue that the compensation offered by the
government is not "just," and perhaps, on a good day, the
government might offer more compensation, but by the end of the day the
government is going to possess the land for "public use,"
whether the owner truly wants to "sell" the land to the
government at that price or not.
If there were no power of "eminent domain," the government
would always be free to make an offer to an owner of private property,
saying, "We'd like to use your property for a dam, a road, or some
other public use. We'll buy your property from you for $X-3." The
owner can counter, saying, "I'll sell it to you for $X+3." The
government can counter-offer with $X-1. The owner can counter-counter
offer with $X+1. The government can appeal to the patriotism of the
owner, explaining how the land will be used by the government to achieve
lofty goals that will benefit the common weal, and the parties can agree
on a price of $X. Anybody can do this, including the government. But
what if the owner sticks to his guns and will not accept less than $X+3?
Too bad. The government will seize the property by force, and use lethal
violence to keep the owner away, giving the owner no more than $X in
compensation, even if the owner considers this unjust compensation.
"Eminent Domain" means the government can take your
property whether you consent
or not.
WallBuilders
- Private Property Rights Resolution
David Barton
Resolution
Acknowledging the Inalienable Rights of Private Property
I.
Whereas, an overriding respect for the sanctity of the ownership
and personal use of private property, free from restrictive and invasive
regulatory regulations, is firmly embedded in American colonial law,
common law, and constitutional law:
A.
The three most-influential political philosophers impacting the
formation of American law were Charles Montesquieu, William Blackstone,
and John Locke [1]
B.
Charles Montesquieu, whose writings were recommended by major
Framers such as James Madison, John Adams, and Alexander Hamilton,
declared: “Let us therefore lay down a certain maxim: that whenever
the public good happens to be the matter in question, it is not for the
advantage of the public to deprive an individual of his property – or
even to retrench the least part of it by a law or a political
regulation” [2]
C.
William Blackstone, whose legal writings were considered as the
final authority in American courts for a century-and-a-half after the
adoption of the U. S. Constitution, declared: “So great moreover is
the regard of the law for private property that it will not authorize
the least violation of it – no, not even for the general good of the
whole community” [3]
D.
John Locke, whose
writings had direct impact in the framing both of the Declaration of
Independence and the U. S. Constitution, succinctly declared that “the
preservation of property [is] the reason for which men enter into
society” and that “government
. . . can never have a power to take to themselves the whole or any part
of the subject’s property without their own consent, for this would be
in effect to leave them no property at all”; [4]
and
II.
Whereas, the right to hold, possess, and use one’s own private
property was also recognized by our Framers and in our founding
government documents as one of the foremost of our inalienable,
inviolable, God-given rights:
A.
Samuel Adams declared that our inalienable rights included “first,
a right to life; secondly, to liberty; thirdly, to property – together
with the right to support and defend them” [5]
B.
John Adams declared that “The moment the idea is admitted into
society that property is not as sacred as the law of God, and that there
is not a force of law and public justice to protect it, anarchy and
tyranny commence” [6]
and that “Property is surely a right of mankind as really as liberty”
[7]
C.
John Jay, original Chief Justice of the U. S. Supreme Court and
an author of the Federalist
Papers declared that “It is the undoubted right and unalienable
privilege of a [citizen] not to be divested or interrupted in the
innocent use of . . . property. . . . This is the Cornerstone of every
free Constitution” [8]
D.
Adam Smith, famous economist of the Founding Era, foresaw the
tendencies of governments to impinge the rights of private property,
forewarning: “As soon as the land of any country has all become
private property, the landlords [e.g., the governments], like all other
men, love to reap where they never sowed, and demand a rent even for its
natural produce” [9]
E.
Noah Webster, a Founding Father who served as a judge and
legislator, declared that property is “the exclusive right of
possessing, enjoying and disposing of a thing; ownership. In the
beginning of the world, the Creator gave to man dominion over the earth,
over the fish of the sea and the fowls of the air, and over every living
thing. This is the foundation of man's property in the earth and in all
its productions. Prior occupancy of land and of wild animals gives to
the possessor the property of them. The labor of inventing, making or
producing anything constitutes one of the highest and most indefeasible
titles to property” [10]
F.
Both John Adams (signer of the Declaration and framer of the Bill
of Rights) and William Paterson (signer of the Constitution and Justice
placed on the U. S. Supreme Court by President George Washington)
declared: “All men are born free and equal, and have certain natural,
essential, and unalienable rights, among which may be reckoned the right
of . . . acquiring, possessing, and protecting property” [11]
III.
Whereas, our founding governing documents declare that it is the
purpose of government to protect and not violate inalienable God-given
rights, including the right of owning and using one’s own property;
A.
James Madison declared that “Government
is instituted to protect property. . . . This being the end of
government, that alone is a just government which impartially secures to
every man whatever is his own. . . . That is not a just government, nor
is property secure under it, where arbitrary
restrictions [i.e., restrictive zoning requirements],
exemptions, and monopolies deny
to part of its citizens that free use of their [own] faculties”
[12]
B.
Fisher Ames, a Framer of the Bill of Rights, forcefully declared
that “The chief duty and care of all governments is to protect the
rights of property” [13]
C.
John Dickinson, a signer of the Constitution, declared: “Let
these truths be indelibly impressed on our minds: (1) that we cannot be
happy without being free; (2) that we cannot be free without being
secure in our property; (3) that we cannot be secure in our property if
without our consent others may as by right take it away” [14]
D.
John Adams – one of only two signers of the Bill of Rights –
declared: “Property must be secured or liberty cannot exist” [15]
and that “[i]t
is agreed that the end of all government is the good and ease of the
people in a secure enjoyment of their rights without oppression” [16]
E.
James Wilson – a signer of the Declaration, signer of the
Constitution, original U. S. Supreme Court Justice, and founder of the
first organized legal training in America – declared that American
government was created “to acquire a new security for the possession
or the recovery of those rights to . . . which we were previously
entitled by the immediate gift or by the unerring law of our all-wise
and all-beneficent Creator,” including the right of property, and that
“every government which has not this in view as its principal object
is not a government of the legitimate kind” [17]
F.
Thomas Jefferson similarly declared that the purpose of
government “is to declare and enforce only our natural [inalienable,
God-given] rights and duties and to take none of them from us,” [18]
including the right to own, use, and enjoy one’s own private property
G.
An early public school textbook on ethics, reprinted for
generations, transmitted these original principles to young Americans,
teaching them: “Property is something which one owns and has a right
to own. . . . Everything which you see or touch belongs to you or to
somebody else. If it belongs to you, you have the right to do what you
please with it, provided you do not abuse it: if it belongs to somebody
else, you have no right to it whatever” – a prohibition that applies
equally to government entities as well as to individuals; and
IV.
Whereas, the Common Law, directly incorporated into the U. S.
Constitution by the Seventh Amendment, establishes that an “absolute
right . . . is that of property. . . . So great moreover is the regard
of the law for private property that. . . . [i]n vain may it be urged
that the good of the individual ought to yield to that of the community;
for it would be dangerous to allow any private man, or even any public
tribunal [governmental body], to be the judge of this common good and to
decide whether it be expedient or no [how to use that property]”; [19]
and
V.
Whereas, for over two centuries, all three branches of American
government at both federal and state levels preserved the ownership and
personal use of private property as an inviolable, inalienable, natural
right, acknowledging that government can neither encroach nor usurp such
vested rights, immunities or privileges;
VI.
Therefore, Be It Resolved,
that all interpretations and applications of zoning ordinances shall be
examined and applied so as to recognize and preserve the inalienable,
inviolable principles of private property usage and that such individual
rights may be infringed only if it is clearly proven that they directly
injure or harm the same rights of another citizen.
[1]
Donald S. Lutz, The Origins
of American Constitutionalism (Baton Rouge, LA: Louisiana State
University Press, 1988), p. 143; Donald S. Lutz, “The Relative
Influence of European Writers on Late Eighteenth Century American
Political Thought,” American
Political Science Review, Vol. 78, Issue 1, March 1984, p. 191.
[2]
Baron Charles Secondat de Montesquieu, The
Spirit of Laws (London: J. Nourse and P. Vaillant, 1752), p.
210.
[4]
John Locke, Two
Treatises of Government (London: Awnsham and John Churchill,
1698), pp. 273-274, Second Treatise §§ 138-40.
[5]
Samuel Adams, The Life and
Public Services of Samuel Adams, William V. Wells, editor
(Boston: Little, Brown, and Company, 1865), Vol. I, p. 502, “The
Natural Rights of the Colonists As Men.”
[6]
John Adams, A Defence of the
Constitution of Government of the United States of America (Philadelphia:
William Young, 1797), Vol. III, p. 217, “The Right Constitution of
a Commonwealth Examined.”
[7]
John Adams, A Defence of the
Constitution of Government of the United States of America (Philadelphia:
William Young, 1797), Vol. III, p. 216, “The Right Constitution of
a Commonwealth Examined.”
[8]
John Jay, John Jay The
Making of a Revolutionary, Unpublished Papers, 1745-1780,
Richard B. Morris, editor (New York: Harper & Row Publishers,
1980), Vol. I, p. 462, “A Freeholder: A Hint to the Legislature of
the State of New York,” Winter 1778.
[10]
Noah Webster, An American
Dictionary of the English Language (New York: S. Converse,
1828), s.v. “property.”
[11]
The Constitutions of the Several Independent States of America
(Boston: Norman and Bowen, 1785), p. 6;
William Paterson, The
Charge of Judge William Paterson to the Jury (Philadelphia,
Smith, 1796), p. 15.
[12]
James Madison, The Writings
of James Madison, Gaillard Hunt, editor (New York: G.P. Putnam’s
Sons, 1906), Vol. VI, p. 102,
“Property,” March 29, 1792.
[13]
Fisher Ames, The Works of
Fisher Ames (Boston: T.B. Wait & Co., 1809), p. 125, “Eulogy
on Washington”, Feb. 8, 1800.
[14]
John Dickinson, The Political Writings of John Dickinson
(Wilmington, Bonsal and Niles, 1801), Vol. I, p. 275, “Letters
from a Farmer in Pennsylvania to the inhabitants of the British
Colonies,” Letter XII.
[15]
John Adams, The Works of John
Adams, Charles Francis Adams, editor (Boston: Charles C. Little
and James Brown, 1851), Vol. VI, p. 280, “Discourse on Davila; a
Series of Papers on Political History.”
[16]
John Adams, A Defence of the
Constitution of Government of the United States of America (Philadelphia:
William Young, 1797), Vol. III, pp. 293-294, “The Right
Constitution of a Commonwealth Examined”; see also The
Founders’ Constitution,
“Balanced Government: John Adams, Defense of the Constitutions of
Government of the United States” (at http://press-pubs.uchicago.edu/founders/documents/v1ch11s10.html).
[17]
James Wilson, The Works of
the Honorable James Wilson, Bird Wilson, editor (Philadelphia:
Bronson and Chauncey, 1804), Vol. II, pp. 454, 466, “Of The
Natural Rights Of Individuals.”
[18]
Thomas Jefferson, Memoir,
Correspondence, and Miscellanies, Thomas Jefferson Randolph,
editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 278, to Francis
Gilmer, June 7, 1816.