Eminent Domain


howardahood

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The doctrine of eminent domain derives from the idea that the king owns all the land and if he wants yours, you have to give it to him. This doctrine was unfortunately incorporated into the U.S. Constitution. The Fifth Amendment to the Constitution contains the words, "nor shall private property be taken for public use without just compensation." This statement implies that government can take private property by force, and indeed the government does this, but adds the requirement that the government must pay for it. The government itself decides how much it wants to pay and if the property owner refuses to sell, a court proceeding will determine the amount.

Like many government powers, this little kicker started small and then mushroomed. At first people thought eminent domain would be used merely to facilitate the building of city halls and perhaps roads or bridges. Now state and local governments are seizing private land and turning it over to corporations for commercial redevelopment. The justification offered is that the corporate owners will pay more taxes. This rationale turns American political theory upside down. Instead of the government existing to protect private rights, private rights are sacrificed to the interest of the government in increasing tax revenue.

I think that Objectivists reject eminent domain as an obvious, gross violation of individual rights, and I agree. But I do concede that without this power, it would be very difficult to get roads, highways, flood control projects, and hydroelectric dams built. But I believe that price must be paid. Without property rights individuals are at the mercy of government and the whole structure of freedom falls. If it is difficult to build interstates without seizing private property, I say so be it.

I would add one new idea, however. I think that government might penalize those who refuse to sell their land by barring them from use of the proposed facility or improvement. To build roads, one must have land. If you refuse to accept a reasonable offer for the purchase of your land, you will not be allowed to use the highway, bridge, or water/sewer service. The individual who refuses to support the road project but wants to drive on the thoroughfare after it is built, cannot have it both ways, as I see it. The details of implementing this kind of penalty would have to be worked out, but the basic idea is that government would have some leverage in getting road projects done without being able to seize private property.

Howard Hood

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Howard,

I have seen many discussion about private roads versus public roads. I have not been convinced of the viability of private roads only, but real-life examples are few, so it is difficult to judge.

I happen to like the way the Constitution says it. The implication is that property does not exist in a single physical form, but may exist in a replacable manner when interests collide (for instance, two people needing to occupy the same place at the same time) through legal tender.

I loathe the idea of the government taking someone's house, even with just compensation, for private real estate investors. That is the old boy syndrome of private business being in bed with the government that I sometimes rant against. I certainly do not understand the concept of public works projects to include that. This is where a good definition of public works, and if such works are legitimate functions of the government, is sorely needed.

Michael

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Michael,

I believe in absolute property rights. On this topic I am in full agreement with AR. Once you let government take a home or piece of land by force--even while paying--the wolf is inside the house. Taxes imposed on the general population are different, as I have suggested in another thread.

Howard Hood

Howard,

I have seen many discussion about private roads versus public roads. I have not been convinced of the viability of private roads only, but real-life examples are few, so it is difficult to judge.

I happen to like the way the Constitution says it. The implication is that property does not exist in a single physical form, but may exist in a replacable manner when interests collide (for instance, two people needing to occupy the same place at the same time) through legal tender.

I loathe the idea of the government taking someone's house, even with just compensation, for private real estate investors. That is the old boy syndrome of private business being in bed with the government that I sometimes rant against. I certainly do not understand the concept of public works projects to include that. This is where a good definition of public works, and if such works are legitimate functions of the government, is sorely needed.

Michael

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But I do concede that without this power, it would be very difficult to get roads, highways, flood control projects, and hydroelectric dams built.

Excellent! Government should not be in any of those businesses anyway!

If you refuse to accept a reasonable offer for the purchase of your land, you will not be allowed to use the highway, bridge, or water/sewer service. The individual who refuses to support the road project but wants to drive on the thoroughfare after it is built, cannot have it both ways, as I see it.

Ridiculous. Highways, bridges and other services should be run by private enterprise on on an entirely voluntary basis.

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Howard,

Outside the eminent domain question, how would you settle a lawsuit where two claimants petitioned for the same physical property, both had a right to it, both wanted to use it, but it was impossible to split or accommodate both?

Legal tender for one party (or even both) to substitute seems the most logical answer to me.

If replacement of value by legal tender is accepted, this is no longer a confiscation of property issue, but a matter of what kind of property is on the table and what use of property means.

btw - I agree with you about the danger of letting the wolf in the door. I even remember one person in the Brazilian government telling me to never get a big issue approved. Always get some little thing approved, the go in with your elbows and open it up. :)

I only see two possibilities of dealing with the wolf, because I don't see him going away on his own: (1) Deny all contexts, or (2) Establish the most objective definitions possible for all known situations. In the first case, it will be difficult to convince anybody except libertarians (from your previous post, it has not even convinced you) and the downside is that the wolf will come in whenever he wants to with his guns pointed at you. In the second, there is the danger of the slippery slope and this requires extreme attention and vigilance, but no more than the first. The upside is that the exceptions are defined in a rational manner instead of being brushed aside by a principle, thus it is possible to go tit-for-tat with collectivists and power mongers. This makes it extremely difficult for them to keep large groups of followers.

If I am not mistaken, Rand once stated that the philosophy of law was a complex issue and needed much more work than she ever gave it. I will have to find that quote.

Michael

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Howard,

I have seen many discussion about private roads versus public roads. I have not been convinced of the viability of private roads only, but real-life examples are few, so it is difficult to judge.

I happen to like the way the Constitution says it. The implication is that property does not exist in a single physical form, but may exist in a replacable manner when interests collide (for instance, two people needing to occupy the same place at the same time) through legal tender.

I loathe the idea of the government taking someone's house, even with just compensation, for private real estate investors. That is the old boy syndrome of private business being in bed with the government that I sometimes rant against. I certainly do not understand the concept of public works projects to include that. This is where a good definition of public works, and if such works are legitimate functions of the government, is sorely needed.

Michael

Michael -

I think this cuts way deeper than just some sort of "slippery slope" analogy which some might want to draw. If the government CAN take away your house, then it's not "your house" - you don't really own it - you just have custody until the government wants it. The so-called divine right of kings - translated to modern government.

Alfonso

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Bill,

The government does not confiscate a house in the same sense as it takes taxes, i.e., in exchange for nothing other than being thrown into the kitty that pays for its services.

I am not justifying this and the issue is complex. But this is why maximum precision of what really goes on is needed. The government substitutes your property with another by force. It does not steal it.

Michael

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