On Eminent Domain: My Letter to Judge Andrew P. Napolitano

[I just emailed this letter here, cross-posted from my blog here.]

Judge Napolitano,

Hello. Listening to your talk today that you gave at Mises University, something occurred to me:

[Edit: let me embed the talk of his about which I speak; go to 12:47 for his discussion of eminent domain, on which I will be focusing:
Again, go to 12:47. End of edit; back to the letter.]

The Constitution nowhere empowers the federal government to practice eminent domain. That is, nowhere in the Constitution is that power granted in the first place. Nor does the Constitution anywhere say that people hold their property by fee simple and not allodial title.

[Edit: let me insert USLegal.com's definitions for "fee simple" and "allodial":

Allodial means free from the tenurial rights of a lord, as opposed to feudal land. It refers to absolute ownership of land by individuals, rather than feudal property ownership, which is dependent on relationship to a lord or the sovereign. Allodial land is not subject to any rent, service, or acknowledgement to a superior.

Most property ownership in the common law world is held in fee simple. Fee simple ownership represents absolute ownership of real property but it is limited by the four basic government powers of taxation, eminent domain, police power, and escheat and could also be limited by certain encumbrances or a condition in the deed. Allodial title is often reserved for governments.

End of edit; back to the letter.]

Given the doctrine of limited, enumerated powers, doesn't that mean that at least with respect to the federal government (each state constitution is its own issue), we all ought to be holding our property by allodial title? After all, the Federalists - including Hamilton himself! - argued that the Bill of Rights is superfluous, because the Bill of Rights prohibits things that are not even permitted in the first place. (Hamilton, Federalist #84: "For why declare that things shall not be done which there is no power to do?")

The Fifth Amendment states, "... nor shall private property be taken for public use, without just compensation", but even that does not empower the federal government to practice eminent domain; it merely limits that power insofar as it exists. It says that property shall not be taken without compensation, but nowhere is there a power to take any property in the first place.

Compare how the First Amendment prohibits the restriction of free speech, but that really, the government was never granted any power to restrict speech in the first place. So too, the Fifth Amendment prohibits taking property without compensation, but really, the government was never granted any power to take property in the first place.

In short: if we take the Federalist tack that the Bill of Rights is superfluous, and that really, we ought to entirely ignore it and do nothing without express sanction in the Constitution (and pretend the Bill of Rights does not even exist), then wouldn't that mean that eminent domain is legitimate only if we find a clause in the Constitution expressly permitting it? (I think the Antifederalists would agree, only they did not trust the government, so they wanted a superfluous and redundant Bill of Rights, just to be safe.) So doesn't that mean that eminent domain is unconstitutional even according to Hamilton?

The issue is, that this implies a contradiction within the Constitution. I mean, if the Fifth Amendment merely said, "... nor shall private property be taken for public use", period, omitting "without just compensation", then fine, we'd say that the clause is redundant and superfluous, just like the rest of the Bill of Rights. But that "without just compensation" throws a spanner in the works; it implies that someone thinks that WITH just compensation it WILL be legal, but that is apparently false. If, according to Hamilton's logic, eminent domain is prohibited absolutely (because there is no express permission), then why say "without just compensation"? Just say, "... nor shall private property be taken for public use", period. Heck, go one better and say, ""... nor shall private property be taken", omitting "for public use" as well! It's understandable when John Adams violates not only the First Amendment but also the doctrine of enumerated, limited powers (that renders the First Amendment redundant), because he is a selfish, power-hungry human, and the government applies the laws only when those laws are in its own favor. But one expects the Constitution to be at least internally consistent; it's reasonable when the practice of the government contradicts the theory, but it's not reasonable when the theory contradicts itself.

Obviously, states are not bound by the Constitution, so it is certainly possible that on the state level, property is held by fee simple, and not allodial title. (This would be despotic and evil, of course, but still constitutional. I am reminded of Rose Wilder Lane recounting a conversation with some primitive Himalayans, who said that if you must pay property taxes in America, then apparently, the government owns your property, and you merely rent it. From the mouths of babes.) So it is eminent domain on the federal level that I cannot wrap my brain around.

So I am confused. Could you please help me?

Thank you, and sincerely,
Michael Makovi
Jerusalem, Israel; formerly of Silver Spring, MD