Can Eminent Domain be Justified?

Tibor R. Machan

Among those of us who prize the protection of inidividual liberty as the primary public good, never to be sacrificed, the issue of eminent domain is troublesome. The reason is the same as with subpoenas. They both seem, on first sight, to be violations of our unalienable rights--to property, to liberty. So what gives?

Arguably, however, when one chooses to be a citizen of a country, remains their voluntarily, one willingly signs up for some provisions, as a matter of one's own free choice. For example, when in the course of the pursuit of justice--say, a criminal trial--one's special, unique testimony is required, something that cannot be obtained without one's services, one owes that testimony. It's part and parcel of being a citizen of a
functioning free legal order without which the system breaks down and justice cannot be pursued.

Similarly, if there is absolutely no other way to obtain facilities, for example, land for conducting trials, police services, imprisonment of criminals, etc.--no places are for sale, there is no unowned space and so forth--then "taking"
private property for the minimal public use or functions is justified because this, too, is indispensable in the pursuit of justice, which is what citizenship is about.

But doesn't this give away the ball game? Aren't there thousands of other needs that can only be satisfied by taking stuff from people, from conscripting their labor?

No. The millions of things people want and even need in society can be bought. They are obtainable through voluntary exchange, even if at times for a high price. But one's unique testimony in the pursuit of justice--say, because one is the only person who witnessed a crime or has expertise about some relevant subject--cannot be obtained that way. Also, if there simply is no place to build a court house without requisitioning someone's private
property, obtaining this is part and parcel of having consented to be governed.

Yes, matters are complicated sometimes for those of us who prize liberty above all. Yet what at times appear to be coercive measures, such as subpoenas and eminent domain, are in fact a feature of prizing liberty. Without them liberty would die. That is what some conservatives mean when they talk of ordered liberty, a free country that is civilized rather than
barbaric.

Some champions of liberty dispute this, claiming that unless providing a place for public facilities is voluntary at the time they are needed, they amount to coercion. But this is a mistake--it is akin to thinking that when someone collects on a debt
one has freely assumed that amounts to expropriation of property. A taking for a bona fide, very limited, public use is something one volunteers to accept, if all other ways of obtaining
the property fail, just in beinjg a citizen of a free society in which government--or indeed any legal order--is instituted to secure our rights. (Even the so called anarchist libertarian
will require such taking in order to deal with court proceedings and defensive police or military policies, should no one at the time volunteer to part with property required for this purpose.)

When John Locke spelled out why government is required to protect individual rights, it was clear to him and to all those who followed his reasoning that certain means are necessary to achieve the goal of such protection. That's why he and classical liberals henceforth advocated strictly limited government. Yes, it is government, but it is strictly limited, something those who prize individual rigthts and their protection cannot do without however much they may wish to pretend it is possible.