The Con-stitution And The Power To Confiscate

Ilana Mercer, February 28, 2014


Bolstered by the U S. Forest Service, Summit County authorities, in Colo., are scheming on seizing 10 acres of verdant land that belongs to Andy and Ceil Barrie.

The parcel of land is situated within the White River National Forest. The authorities claim the couple’s use of a motorized vehicle on the preserved land risks “damaging the alpine tundra and streams and the habitat of the endangered lynx.”

Since it is the nature of government to “turn a wormhole into a loophole,” the solution sought by the county’s commissioners and attorney general is to confiscate private property under the guise of “open-space” conservation. On their side—and against the right of private property—the knaves of this Colorado county have a thing even more formidable than the U S. Forest Service: the U. S. Constitution.

Or, dare I say the Con-stitution?

Any discussion about the plight of the Barrie couple must be prefaced by noting the following:

There is no dispute as to the right of government grandees to grab private property. What remains of some dispute is whether the county has exceeded its authority to steal. For the Constitution gives authorities the right to seize private property for the “common good—that catch-all constitutional concept. Has not the General Welfare Clause, in Article I, authorized all three branches of colluding quislings to do just about anything which in their judgment will tend to provide for the general welfare?

The term for state-sanctioned theft of private property is “eminent domain.” A section of The Fifth Amendment to the Constitution reads as follows: “nor shall private property be taken for public use, without just compensation.”

Understand: Compensating the individual if and when government confiscates his land for the ostensible greater good: that is not what’s so wicked here. Rather, it is that implicit in the Bill-of-Rights clause mandating “just compensation” is the acknowledgement that government has the right to confiscate private property, in the first place.

Legal experts are agreed that when it comes to eminent domain, “The ambit of national powers is wide–ranging,” as the Legal Information Institute puts it:

[Eminent domain] is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.” Eminent domain “appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” … the Court [has] affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any State.

The Anti-Federalists forewarned early Americans of the “ropes and chains of consolidation,” inherent in the new, proposed Constitution.

Eminent domain is one example of the slow and surreptitious leap from the freedom of a loose confederation of sovereign states—”a league of friendship”—to the “ropes and chains” of a unified state.

True, too, is that the Anti-Federalists gave us the Bill of Rights. Without their insistence on instantiating individual liberties in the Constitution, we’d be bereft of the protections afforded by the first ten amendments appended to the U. S. Constitution. Instead, property taken in “the pressing urgencies of government,” the words, circa 1787, of an anti-Federalist named “Federal Farmer”—would be removed willy-nilly and without compensation.

Thus, while the Anti-Federalists deserve our gratitude for forestalling a measure of tyranny, these unsung heroes of the American founding must not be blamed for the defensive clause in The Fifth, stipulating “the right to receive just compensation when the government takes private property for public use.” The Anti-Federalists did not write the thing; Federalist James Madison was the one who introduced the amendments to the First United States Congress as a series of legislative articles.

Like a rattlesnake in winter hibernation, “the federal power of eminent domain lay dormant in the early years of the nation. It was not until 1876 that its existence was recognized by the Supreme Court.”

Nevertheless, it is hardly incorrect to say that before 1791, the time of ratification by the states, Americans owned the property they had homesteaded. After ratification, not so much.

Economic Policy Journal, 
American Daily Herald &
February 28

CATEGORIES: Constitution, Founding Fathers, History, Private Property Rights, The Environment