Eminent Domain

(Reprinted from The Politics of Guilt and Pity [Vallecito, CA: Ross House Books, 1995], 325-330.)

The doctrine of eminent domain is a basic but unexamined concept of civilization, an idea assumed without question by most people as a necessary evil. A simple definition is in order by way of introduction, and the second edition of the Merriam-Webster dictionary provides a convenient one:

Eminent domain. Law. That superior dominion of the sovereign power over all the property within the state which authorizes it to appropriate all or any part thereof to a necessary public use, reasonable compensation being made. The obligation to give compensation is considered by the best authorities as being incident to the right of eminent domain, and not an imposed limitation. The right of eminent domain is usually carefully distinguished from that of taxation and the police power. In Great Britain the compulsory acquisition of land for public or semi-public purposes is governed by statute, and is called compulsory purchase in England; in Scotland the transaction is called compulsory surrender. Some consider an analogous right, wider than angary, to exist in international law for one nation to appropriate the territory or property of another as a necessary measure of self-protection.

Eminent domain is thus an attribute of ultimate sovereignty, and therefore it is an attribute of divinity. According to the Bible, “The earth is the Lord’s” (Ps. 24:1), and He therefore has total dominion over it. Because “[t]he earth is the Lord’s,” God requires the whole world to submit to His law and regards all things as subject to total control, confiscation, or regulation by His sovereign power and Word (Exod. 9:29, 19:5; Deut. 10:14; Ps. 50:12; 1 Cor. 10:26, 28). As God declared to Job, “Who hath prevented me, that I should repay him? whatsoever is under the whole heaven is mine” (Job 41:11). The premise of the Bible is God’s assertion of total sovereignty over all creation and all men. The Mosaic law claimed total sovereignty for God and the jurisdiction of His law over all persons, Israelite and foreigner, within the boundaries of the nation (Deut. 31:12), but those outside the law of the covenant were not thereby outside God’s jurisdiction. The judgment of all the nations is repeatedly proclaimed, precisely because God’s sovereignty extends over all nations. “Under Scriptural law, all property — the whole earth — belongs to God, who is the only owner of property”^[1] in any ultimate and sovereign sense. Man holds title under God.

In the Biblical law, the state has no right of eminent domain, and no right to tax the land. “It was impossible to dispossess men of their inheritance under the law of the Lord as no taxes were levied against land.”^[2] The tithe was God’s tax, not a gift to God. The state was limited to a tax resembling the tithe, a tax on increase, not on the land itself.^[3] God as sovereign confiscated the land when the Israelites became apostate, even as He dispossesses and destroys all peoples for their failure to acknowledge His dominion and sovereignty. The marks of a tyrant and a supplanter of God’s kingship over a people was specified as oppressive taxation, and the confiscation of land by eminent domain (1 Sam. 8).

For the state to claim the right of eminent domain is therefore a claim to divine right. Eminent domain is not, as some jurists would hold, a pragmatic and necessary law, but a lively survival of the ancient claim to divinity by the state. The fact that people are not aware of the significance of eminent domain does not reduce its significance to the slightest degree. The state, in claiming eminent domain, is simply asserting “sovereign power over all property within the state,” to cite Webster again, and compensation for such seized properties is “incident to” but not an essential part of “the right of eminent domain.” And today, in the average American city there are about 50 agencies that have the power to confiscate land.^[4]

The right of eminent domain, then, is a divine right and power. Moreover, there are no degrees of divinity: divinity is a total concept. A deity is either divine, or he is not; he is either a god, or he is not. Thus, when the state lays claim to divinity, it lays claim to a total power. The right of eminent domain ostensibly limits the state to the confiscation of properties necessary to the common good or to the public welfare. But the state is the judge of the common good and public welfare, and so the power of eminent domain expands steadily toward the total possession by the state of all properties within the state. The state, being viewed as the higher or supreme power, and the possessor of eminent domain, is seen as the natural guardian and agency of public welfare. In terms of this presupposition, private ownership is seen as hostile to the common good, whereas state ownership advances the public welfare. With this philosophy, total confiscation is simply a question of time. The right of eminent domain, therefore, by associating a “necessary common use” or good with the state, makes the state into a benevolent god whose control and ownership are necessary to the welfare of man.

It is impossible to understand the Bible apart from its assertion of God’s sole eminent domain over every realm. The cleansing of the Temple by Jesus, both at the beginning and end of His ministry, was an assertion of His eminent domain over the church. His condemnation of Jerusalem (Matt. 24:1ff.), His declaration that the Kingdom of God was taken from Israel and given to another (Matt. 21:43), His assertion of divine Kingship before the Sanhedrin (Matt. 26:64), and His declaration of His Kingship before Pilate (John 18:33–37), were all assertions of eminent domain over the state, whether Judea or Rome. His triumphal entry into Jerusalem was begun with an act of eminent domain and confiscation. Disciples were sent to a neighboring village to get a colt. There was no promise of payment or return. They were merely to assert: “The Lord hath need of him” (Luke 19:28–48). He blasted the fig tree (or Israel) later in the week, asserting His eminent domain over both nature and the state. The “vineyard” or Kingdom of God was His to bestow, and man’s life was His to bless, or to destroy (Luke 22:9–16).

Sovereignty and eminent domain are inescapable concepts. Denied to God, they will accrue to men. Today Caesar is taking the sovereignty men will not allow to God. Sovereignty is supremacy in rule and power, and eminent domain is an aspect of sovereignty. Sovereignty cannot be avoided: it will either be reserved to God, or it will accrue to men. With the anarchists, sovereignty is reserved to the individual man; within the statists, it is reserved to the state. In either case, it is tyranny.

Because the state has claimed sovereignty, and therefore divinity, it has supplanted Christianity as the new yet ancient religion of man. Problems of state are now essentially religious problems, and the program of the state is social salvation, and individual salvation as well by means of mental health plans. George Forell has described the change in man’s life:

If one would define the crucial problem of the 16^th century as the problem of religion and the crucial problem of the 18^th century as the problem of the truth, it could be said that the crucial problem of the 20^th century is the problem of the state. The decisive question on which everything depended for the 16^th century man was the decision between the contending religious forces. Later the decisive question became the belief in the supremacy of reason and the truth which reason can supply over all other values and standards. It has been left to the 20^th century to place the state and man’s political decision in the center of his existence. The conflicts of our age are not religious, if religion is to be interpreted as relating man directly to God, and they are not in the realm of truth or science. All these matters are now subordinated to the state. Right, orthodox, wise, and true is the man who holds the accepted view of the state, even though everything else about him may be questionable. He may have the wrong religion — or no religion at all; he may be ignorant or untruthful; if he shares our view of the state, he is acceptable. Whether we realize it or not, the political problem has become the central problem of our life. No longer is our question, “What is our God?” or “What is your Truth?” but it is now “What is your State?”^[5]

John Dewey openly made the state man’s religion. “State consciousness” he saw as an achievement of the Greeks, which the United States had come “to profit by.” “The state life … is of more importance than the flourishing of any segment or class.” Moreover,

In such dim, blind, but effective way the American people is conscious that its schools serve best the cause of religion in serving the cause of social unification; and that under certain conditions schools are more religious in substance and in promise without any of the conventional badges and machinery of religious instruction than they could be in cultivating these forms at the expense of state-consciousness.^[6]

For Dewey, state-consciousness was the new form of God-consciousness.

Because the state has become the new form of man’s catholic religion, the purpose of the state, whether the United Nations, the Soviet Union, or the United States, has come to be man’s salvation.

Especially with World War I and thereafter, the state, in its warfare as well as its legislations, came to be messianic. Historians delight in showing their contempt of Christianity by calling various past conflicts “holy wars,” usually with scant excuse. But certainly modern warfare has become holy warfare, and each new war a holy war to save mankind from some demonic forces, usually an opposing form of statism.

The framers of the U.S. Constitution echoed the colonial American horror of human sovereignty and avoided entirely all reference to the concept as illegitimate. For them sovereignty was an attribute of God, not the state.^[7] The return of the concept of state sovereignty is thus a rejection of the American heritage as well as of the triune God.

Because sovereignty is an inescapable concept, it is also an undiminishable concept. Total sovereignty always remains. Its locale is simply shifted as man’s “ultimate concern” shifts from God to the state. The undiminished sovereignty remains. That undiminished sovereignty today stands in open manifestation in the form of the state. Man will either acknowledge the sovereignty and eminent domain of the triune God, or he will be compelled to bow down to the pseudo-sovereign state, with its claims to undiminished and total power. But, whatever man or the state does, God’s sovereignty remains, and men will meet Him, either as their King or as their Judge.^[8]