Property is the most fundamental and complex of social facts, and the most important of human interests; it is, therefore, the hardest to understand, the most delicate to meddle with, and the easiest to dogmatize about.
~ William Graham Sumner
There is no better example of the fraudulent nature of political systems than is to be found in the concept of u201Ceminent domain.u201D The lies that have long been taught to gullible people about how government exists in order to protect the lives and property of individuals, are revealed in the practice that allows the state to forcibly take property from its owners. If one bothers to examine the literal meaning of eminent domain, one discovers — as one dictionary informs us — the underlying premise of u201Cthe superior dominion of the sovereign power over all lands within its jurisdiction.u201D
The stark contradiction between the idea that the state was created to protect private property rights, and that the state has u201Csuperior dominionu201D over all such property, has been conflated into the common belief that individual rights come from the state; that u201Cpropertyu201D is a state-created concept. This notion has been no more forcibly confronted than it was by the 19th century philosopher, Thomas Hodgskin, who observed that, in order to accept it
we must believe that men had naturally no right to pick up cockles on the beach, or gather berries from the hedge — no right to cultivate the earth, to invent and make comfortable clothing, to use instruments to provide more easily for their enjoyments — no right to improve and adorn their habitations — nay, no right to have habitations — no right to buy or sell, or move from place to place — till the benevolent and wise law-giver conferred all these rights on them. If the principle be true in one case it must be universally true; and, according to it, parents had no right to the love and respect of their offspring, and infants no right to draw nourishment from the breasts of their mothers, until the legislator — foreseeing, forecalculating the immense advantages to the human race of establishing the long list of rights and duties which grow out of their affections, and constitute our happiness — had established them by his decree.
The malignant nature of eminent domain has so metastasized itself throughout America that even some members of the news media are taking note of its dangerous implications. The U.S. Supreme Court’s Kelo case declared a state’s use of such authority to forcibly take private homes from their owners and transfer ownership to commercial developers was not violative of the Fifth Amendment. Such powers have long been used to confiscate private property on behalf of politically-influential business interests desirous of building sports stadia, factories, industrial parks, or shopping centers. American Indian tribes were, perhaps, the earliest victims of such wholesale thievery, their men and women forever emblazoned, in Hollywood films, as u201Csavagesu201D for forcibly resisting being plundered and slaughtered by the 18th and 19th century corporate-state interests who rationalized their marauding as u201Cmanifest destiny.u201D
I have always regarded it as a distinction without meaning to allow the state to exercise eminent domain powers in furtherance of its demands for government roads, schools, parks, military bases, and the like, but not to benefit private commercial interests. It is the state’s forcible taking of private property for any purpose that should be condemned. The state has tried to justify such powers on a number of grounds, the more prevalent being the u201Ctransaction costsu201D associated with having to negotiate with a multitude of property owners in order to put together a project. Such arguments are often made by those who regard significant transaction costs as sufficient grounds for violating the will of an owner; a purely materialistic, mechanistic contention that fails to account for the psychic costs that accompany the victimization of individuals.
In a free society — grounded in respect for the inviolability of the individual and his or her property interests — the incurring of transaction costs in dealing with others would be a way of confirming such respect. It is because my neighbors and I might not be enthusiastic about your planned use of our lands — and, indeed, might have our own alternative purposes in mind — that you would be expected to negotiate with us. By offering additional inducements, you might persuade us to alter our preferences and sell to you. This is such a fundamental tenet of a market-based economic system, that it is surprising so many otherwise intelligent men and women blank out when the state is the interested buyer. If you and I are expected to purchase our homes on the market without the use of governmental powers to force a seller to meet our demands, why should the state — which has hundreds of billions of looted dollars at its disposal — not be required to do likewise?
While the practice continues — with both the state and corporate interests as beneficiaries — there has been, in recent years, a greatly increased popular resentment of such powers. Growing numbers of farmers have become resentful of government regulations of their lands — a practice whose roots are tied to the same premise as eminent domain. In the name of u201Cenvironmentalism,u201D or the u201Cprotection of endangered species,u201D the state has made it increasingly difficult for farmers to profitably engage in their trade. Response to the Kelo decision seems to represent a bifurcation point that may — like Cindy Sheehan’s stance against the Iraq war, or Rosa Parks’ refusal to move to the back of a bus — unleash a lot of pent-up, energized resentment against governmental theft of property.
There is currently unfolding, in the city of Riviera Beach, Florida, an effort to use the powers of eminent domain to take as many as 2,000 homes in order to allow for the private development of a billion-dollar yachting, high-income housing, and commercial facility. The rationale for this project is, of course, the same that has underlain previous efforts throughout America, namely, to u201Crevitalizeu201D or u201Crenewu201D a community. The assumption — that ought to have been laid to rest by the failures of politically directed economies — is that government coercion and planning ought to be substituted for marketplace influences that are more responsive to latent economic preferences within a community.
Most of the affected residents of Riviera Beach are black, which brings to mind an interesting historical event of which I just recently became aware. Two weeks ago, Tom DiLorenzo, my daughter Bretigne, and I attended a very interesting exhibit at the New York Historical Society in New York City. Titled u201CSlavery in New York,u201D the exhibition helps to deflate the statist fantasy that the American Civil War was energized by northern hostility to the practice of slavery. As the exhibit book states:
For nearly three hundred years, slavery was an intimate part of the lives of all New Yorkers, black and white, insinuating itself into every nook and cranny of New York’s history. For portions of the seventeenth and eighteenth centuries, New York City housed the largest urban slave population in mainland North America, with more slaves than any other city on the continent.
Over 25% of the New York City work force — and upwards of 50% of that in areas outside the city — consisted of slaves. Toward the mid-eighteenth century, some 40% of New York City households had at least one slave. While the State of New York passed antislavery legislation in 1827, the practice was not made illegal in New Jersey until 1865, with the passage of the Thirteenth Amendment.
While at this exhibit — which continues to March 26th — I learned of the experiences of some former slaves who had managed to become free in antebellum New York City. A number of them formed a community in an area extending from present-day 81st to 89th Streets, between 7th and 8th Avenues, known as u201CSeneca Village.u201D Churches and a school were established in this village which, in time, also welcomed Irish and German immigrants.
The exhibit book informs us that, by the early 1850s, many whites in New York City became concerned with how well Seneca Village was doing. u201CThat the Village occupied land that was increasingly valuable as the settlement of Manhattan marched north was not lost on them.u201D The Democratic Mayor of New York City, Fernando Wood, employed the powers of eminent domain, in 1855, to remove these black property owners and create a city park.
For two years, the Villagers resisted the city’s orders to leave, as well as the efforts of the police who had been directed to remove them. In the words of one New York newspaper, u201C[t]he policemen find it difficult to persuade them out of the idea which has possessed their simple minds, that the sole object of the authorities in making the Park is to procure their expulsion from the homes which they occupy.u201D Seneca Village was thus destroyed and, in the words of another newspaper u201Cthe supremacy of the law was upheld by the policemen’s bludgeons.u201D Some 1,600 persons — who had the audacity to believe that they were entitled to live as free men and women in a city that had earlier enslaved them — were forcibly evicted from their homes. The lands were then cleared to become a part of Central Park.
Central Park’s website informs us that, following the government’s destruction of Seneca Village, its erstwhile residents u201Cdid not reestablish their long-standing community in another location.u201D Nor should this surprise us. The history of eminent domain — whether practiced under the banner of u201Cmanifest destiny,u201D u201Curban renewal,u201D u201Cland use planning,u201D u201Durban redevelopment,u201D or efforts to u201Crevitalizeu201D a city — is replete with examples of the unintended destruction of once vibrant and orderly neighborhoods, communities, and cultures. Those who doubt this are invited to compare the present condition of most American Indians with that of their ancestors; or to contemplate how the urban renewal destruction of traditional ethnic neighborhoods also destroyed the informal systems of order that prevailed therein, leaving in their wake the brutality of street-corner gangs and drug-wars.
It will be interesting to watch the playing out of events in Riviera Beach to discover whether, one-hundred fifty years later, the black residents of this community will fare any better than the Seneca Villagers as they confront those in power upon whom the fact is u201Cnot lostu201D that others occupy land that is u201Cincreasingly valuableu201D for the purposes of non-owners.
Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law.