Eighth Commandment

Eminent Domain

Professor: Dr. R.J. Rushdoony

Subject: Restitution & Forgiveness

Lesson: Eminent Domain

Genre: Speech

Track: 85

Dictation Name: RR130AU85

Location/Venue:

Year: 1960’s-1970’s

Our scripture is Deuteronomy 10:12-14, and our subject: Eminent Domain. “To keep the commandments of the Lord, and his statutes, which I command thee this day for thy good? Behold, the heaven and the heaven of heavens is the Lord's thy God, the earth also, with all that therein is.”

Our subject today is a very important one: Eminent Domain. Eminent domain is the claim to sovereignty by the state, by civil government, and it is the claim to all property within the state. According to the doctrine of eminent domain, the state has the right to appropriate all or any part of the property within the state to any public or state use it deems necessary. Moreover, according to the doctrine of eminent domain, while the state can compensate you for the property it seizes from you, it is under no legal obligation to give you any compensation for it. This, briefly, is the doctrine of eminent domain. Eminent domain is an assertion of absolute sovereignty, absolute lordship. whereby the power asserting eminent domain declares it has a total right to anything and to everything within its jurisdiction. This is why, because of this doctrine, the state, in formulating the doctrine in terms of the income tax, calls everything it leaves you an exemption, a grant to you. In terms of the doctrine of eminent domain, the state can take all your income, all your property, all your possessions of any kind whatsoever, and give you nothing in return. Thus, when anyone contests any seizure by the state of his property for some public purpose, while normally the state says, “We will give you a just compensation,” it reserves you the right to deny you any compensation.

As a result, it grants you no legal leg to stand on when you go to court against it. Now, in terms of scripture, the right of eminent domain belongs to God alone. God alone is sovereign. God alone is creator and Lord. Therefore, our scripture declares, because the earth is the Lord’s and the heaven also, with all therein is, God can therefore require of us absolute obedience. He can command us to walk in all his ways, and to love him and to serve him, with all our heart and with all our soul. He can, as he elsewhere says, therefore condemn us to hell, or to judgment, and to give us whatsoever he chooses. To kill and to make alive, to bless us and to curse us, because God has sovereignty. He alone has eminent domain. Sovereignty and eminent domain are basically the same concept.

Now, according to scripture, the reason why we can rejoice in the Lord is because he is sovereign. He has eminent domain. “The earth is the Lord's, and the fulness thereof; the world, and they that dwell therein.” Every time we hear that statement in scripture, and it appears over and over again, it is made the ground of our confidence and our joy. The earth is not the state’s. The earth is not man’s. It is the Lord’s. He therefore, alone has eminent domain. The eminent domain of the state is not recognized in scripture except as a sin. Thus, when Ahab claimed the right to take Nabob’s vineyard, Elijah declared God’s judgment was on Ahab. Moreover, Samuel, in 1 Samuel 8:14, declares that when people are apostate, when they depart from God, then the state begins to play God and to claim the right of eminent domain.

The origins of the doctrine of eminent domain are in pagan kingship. Because the kings of antiquity were gods walking on earth, they had the right to everything on the face of the earth. The term eminent domain, of course, did not originate until Grotius in 1625, but the concept appeared in paganism and it was revived by the Scholastic thinkers with their natural law philosophy. Natural law philosophy saw ultimate law and ultimate power in nature rather than in God. Otto Gerge{?} who has been the scholar who has studied the natural law philosophy as much as any, has written, “Sovereignty, majesty, supremacy, etc. in the theory of natural law not only means a particular form or quality of political authority. It also means political authority itself in its own essential substance.” Now that statement, highly condensed as it is, does state very frankly, the state is god in natural law philosophy. Political authority is absolute authority. There can be no limitations on the state.

Cochran and Andrew, two American scholars, in commenting on eminent domain in America declare, “The power of eminent domain is a sovereign, inherent power which cannot be contracted away or separated from the state.” In other words, the state is God and it cannot abdicate under any circumstances, and so if Congress passes a law and says we give aid to the schools but deny any claim to govern the schools, this is impossible, because the state has sovereign power in every area, and nothing Congress can say can abdicate the power of the federal government to govern every area. So whether the state chooses to exercise it or not, it has absolute power in every area.

Now, this power of eminent domain was not recognized by the Colonies. It was not recognized by the Constitution. In fact, the Constitution does steer clear of anything smacking of eminent domain, refused to use the expression, of course, because they denied it, and they refused to use the word “sovereignty” because sovereignty belongs to God alone. You will not find anywhere in the Constitution, the word “sovereignty.” In fact, when some of the states began to use the term, about 1835-40, John Quincy Adams was horrified, and in one of the most famous Fourth of July orations in American history, declared that the term belonged to God alone, that the whole point of the War of Independence was to rebel against this kind of statism, this kind of usurpation of God’s powers by the state.

But let us now examine what an important law book, The Kinney & Rich Ruling Case Law, has to say about eminent domain. It is a rather long statement, but it is very important for us to understand this, so while it isn’t like any legal statement, scintillating reading, it is important. “Eminent domain and exercise of sovereignty. It was the theory of Grotius that the power of eminent domain was based on the principle that the state had an original and absolute ownership of the whole property possessed by the individual member of it. Antecedent to their possession, and that their possession and enjoyment of it, being subsequently derived from a grant by the sovereign. It was held subject to a tacit agreement or implied reservation that it might be resumed and all individual rights to it extinguished by a rightful exertion of this ultimate ownership by the state. This explanation of the basis of the power of eminent domain was adopted by several of the state courts in their earlier decisions. Grotius’ theory however, was not adopted by all of the other political philosophers. Pionetius, quoting Seneca to the effect that to kings belong the control of things, to individuals the ownership of them. It was objected by some of the judges of this country and viewed with the spirit of individual liberty, that such a doctrine is bringing the principles of the social system back to the slavish theory of Hobbs{?} which however possible it may be in regard to land once held in absolute ownership by the sovereignty and directly granted by it to individuals, is inconsistent with the fact that the securing of preexisting rights to their own property is a great motive{?} object of individuals for associating into governments. Besides, it will not apply at all to personal property which, in many cases, is entirely the creation of individual owners, and yet the principle of appropriating private property to public use is fully as extensive in regard to personal as to real property. Accordingly, it is now generally considered that the power of eminent domain is not a property right or an exercise by the state of an ultimate ownership in the soil, but that it is based on the sovereignty of the state. As that sovereignty includes the right to enact and enforce this law, anything not physically impossible and not forbidden by some clause of the Constitution and the taking of property within the jurisdiction of the state for public use on payment of compensation is neither impossible nor prohibited by the Constitution. A statute authorizing the exercise of eminent domain needs no further justification. The question is largely academic, but is of some practice importance in deciding whether the United States may exercise the right of eminent domain within the District of Columbia, notwithstanding a provision in the act of session that property rights of the inhabitants should remain unaffected. It was held that as eminent domain was a right of sovereignty and not of property, the provision had no application.”

Now I think it’s worth reading that because it’s such a brilliant example of legal double-talk. It begins by admitting that eminent domain as it was formulated said that the state has a right to anything you have before you earned it and after you earned it, your income and your property, to anything you make and manufacture. Then it points out that a number of the judges in this country, in the first half of the last century, objected to this doctrine. They felt it was alien to everything in this country and not in the Constitution, and of course, they admit it was not in the Constitution. They indulge in some double-talk saying that it is not actually a seizure. After all, the state really owns it, and as they come to the case of the District of Columbia, with it was seated to the federal government, this act of session specifies that all the private property within the District of Columbia belonged to the people who already owned it and could never be taken by the federal government, but this statement declares, eminent domain is prior to the Constitution, and whether the Constitution has anything to say about it or not, sovereignty is an attribute and therefore, eminent domain is an attribute of the state.

Now, there are a number of very, very important presuppositions in this statement which is a matter of law, but we’re going to confine ourselves to two very important presuppositions here. First of all, the natural right of the state to eminent domain, in other words, the acceptance of the doctrine of Hegel that the state is God walking on the earth, is assumed, as though this is a fact of life like the law of gravity and the fact that there is a sun out there. The state is God walking on the earth. Therefore, anything in any law, and we can add, in the Constitution, that militates against eminent domain is thereby null and void. This is why the Tenth Amendment no longer has any binding force{?}. Since especially the Civil War, the doctrine of eminent domain has been made basic to our force{?}, the Tenth Amendment has become null and void. This is why, although the Constitution does grant you the right to bear arms, increasingly, this right is being denied. Why? Because the state has a prior right in everything and therefore, no law that is passed is any good. Every law, every article of the Constitution can be set aside by the prior sovereign right of the state.

Thus, no law, no Constitution has any validity as long as the right of eminent domain is affirmed, and you can pass any law you choose in Congress, and because of the doctrine of eminent domain, the courts can overturn it.

Second, this legal statement declares that the absolute right to eminent domain is derived from the right of sovereignty, but the United States Constitution never affirmed any right to sovereignty. It denied it, because men then believed that God alone is sovereign. As a result, eminent domain clearly implies another religion than Christianity. The assertion of sovereignty by the state and the doctrine of eminent domain by the state is a humanistic idea, and it has led to a counter-assertion, again humanistic, of the sovereignty of the individual.

As a result, as long as you have humanism, you will have your choice of two options: eminent domain by the state or eminent domain and sovereignty by the individual. Totalitarianism or anarchism, and as things are today in America, in terms of what the schools are teaching, these are the only live{?} options that you see, so they are a part of the New Left, either the collectivist or the anarchist branches. These are the only live options presented to them. But collectivism, of course, or totalitarianism, is in the same family as anarchism, and anarchism really does not exalt the individual as much as it thinks it does.

Let’s examine anarchism and its doctrine of sovereignty and eminent domain. Bakunin is the great philosopher of anarchism. Bakunin said that the state is a sham god who is to be destroyed. His trust was in natural law, of course, because the background of humanism is natural law philosophy, and he said natural law knows no god and no state, nor any theory of state, but it only knows man, and he declared, “Man can never be altogether free in relation to natural law and social laws.” Freedom means not revolting against all laws, because, “Insofar as laws are natural, economic and social laws, not authoritatively imposed but inherent in things, they are to be obeyed. If they are political and juridical laws imposed by men, they are not to be obeyed.” This is Bakunin’s thesis.

Therefore, you must revolt against the state in terms of the sovereignty of man, but what does this mean? Let’s analyze Bakunin further. This is what he said. “Man cannot revolt nor escape from nature. Against the laws of nature, no revolt is possible on the part of man, the simple reason being that he himself is a product of nature, and that he exists only by virtue of those laws. A rebellion on his part would be a ridiculous attempt. It would be a revolt against himself, a veritable suicide, and when man has a determination to destroy himself, or even when he carries out such a design, he acts in accordance with those same natural laws from which nothing can exempt him, neither thought nor will nor despair, nor any other passion, nor life nor death. Man himself is nothing but nature. His most sublime or most monstrous sentiment, the most perverted, the most egotistic, or the most heroic resolves are manifestations of his will, his most abstract, most theological or most insane thoughts. All that is nothing else but nature. Nature envelops, permeates, constitutes his whole existence. How can he escape this nature?”

So, for Bakunin, man ends up being nothing but nature, nothing but a reflex action. Instead of a God, a sovereign, he’s just a reflex action of nature. Therefore, Bakunin said we must negate God and we must negate, of course, the state, but it is not man the individual, but man being a social animal. Man he said, “is truly man only in society. Therefore, social solidarity is the first human law. Freedom is the second law.” So now, man being a social animal, the only law that prevails is not the law of the state, but the law of the pack. If there’s a mob going down the street, there you have true law. Any law from God, or any law from the state, or any law from the individual is invalid. It’s the law of the pack, because social solidarity is the first human law. Freedom is the second law.

Therefore, it is impossible for man to be independent from nature, and from the group, from the pack. To continue with Bakunin, “The primitive, natural man becomes a free man, becomes humanized, a free and moral agent. In other words, he becomes aware of his humanity and realizes within himself and for himself, his own human aspect and the rights of his fellow beings. Consequently, man should wish the freedom, morality, and humanity of all men in the interest of his own humanity, his own morality, and his own personal freedom. Thus, respect for the freedom of others is the highest duty of man. To love this freedom and to serve it, such is the only virtue. This is the basis of all morality, and there can be no other.”

In other words, you must subordinate yourself totally to all other men. We cannot have what they do not have. You must yield everything to other men. The law of the pack. Now Bakunin’s logic is sound, but his premise is false. If eminent domain is accepted as a fact, a reality, belonging to man or the state, you have your choice between Karl Marx and Bakunin, and every other philosophy is a halfway house between one and the other. Either eminent domain and sovereignty belong to God alone or take your choice, Marx or Bakunin. Anarchism or totalitarianism, and this is why every protest against statism today and against the drift of things is invalid. It’s futile. It does not strike at the roots. Who is sovereign? Who is Lord? God, or the state? God or man, take your choice.

Now, at this point, many conservatives state, immediately, “Oh, well theoretically you’re {?}, we’ll grant you that,” but practically, how are you going to have any kind of society if the state doesn’t have eminent domain to build highways, to go in and confiscate somebody’s property because you’re going to build a highway, and consider what confusion there would be if the state didn’t exercise eminent domain, to control the airwaves so that if everybody could have a radio station, why there’d be confusion. Many on the same wavelength and many trying to get in on the same channel. In other words, they grant the theological, the philosophical problem to be correct, then they raise the technological answer, and the answer to that is, of course, is a very obvious one. More than one person has pointed out, for example, a few years ago, it was very clearly pointed out with respect to television and radio, there are possibilities, whereby, with a little bit of development, as many channels as you want could come in, as stations you want could come in on one channel, and one wavelength, but when the state claims the power to govern an area and limits one station to one wavelength or one channel, who’s going to invent anything that cannot be used? Technical problems can be solved, but if the technical is exalted to primacy, then you have said, Because we have a technical problem we have no choice but to accept totalitarianism. Is this morally sound? And the answer is, it is clearly not.

Against the eminent domain doctrine of humanism, biblical law declares the sovereignty of the triune God and his total and sole right to eminent domain. All property is held in trust and in stewardship to God the king. God does not confiscate this property from us or give anyone the right to confiscate it from us. He judges us and if he takes the property from us, it is only because we have failed to obey his laws. No institution can exercise any prerogative of God, unless specifically delegated to do so, and within a specified area of God’s law. The state is the ministry of justice, God has so declared it. The state cannot go beyond the area of its ministry. The church is the ministry of grace. It cannot go beyond its appointed area, and no area, church, state, school, or any other has any right of sovereignty or eminent domain.

Thus, until we admit that the earth is the Lord’s, and the fullness thereof, the world and all they that dwell therein, and that he alone is sovereign with rights of eminent domain, we will have our chronic, humanistic quarrel between totalitarianism and anarchism. It cannot be resolved. We must reject both alternatives in favor of the triune God and his supernatural law. Let us pray.

Almighty God, our heavenly Father, we give thanks unto thee that thou art God, and our strength and our joy is in thy Lordship{?}. We thank thee that these fools who are polluting and destroying the earth with their quarrels, claiming to be God, shall in due time be destroyed. That thy word is law, that the heaven rage in vain and imagine a vain thing when they seek to destroy thy laws and cast thy bands from them. O Lord, our God, fill us with thy laughter as thou dost hold them in derision, and give us the confidence in thy victory where in deed thy word is true, that blessed are all they that trust in thee. Our God, we praise thee in Jesus name. Amen.

Yes?

[Audience] {?} How do you handle the technological {?}

[Rushdoony] Right. The answer to that is, of course, that the first roads in this country which were put in the original states were put in without eminent domain. Thus, it can be done. They were private roads, too. Second, if private initiative were to take over, we would have technological developments that we presently cannot imagine that would solve these problems. In other words, it’s a problem of technology, and we mustn’t underrate the ingenuity here, so that we cannot exalt the present technological problem into a point of denying sound theology in terms of it. I don’t know how some of these problems would be solved. I do know they have been.

[Audience] {?} technological problem {?} I agree with {?} technological problem {?}

[Rushdoony] First of all, if you had a society without eminent domain, it would be radically different from what it is today, because first of all, the state today has the unlimited right to go in and condemn, and then to create things that are technological impractical. Thus, to take a practical example, in San Francisco, one of the finest means of public transportation, the private streetcar and bus companies, were taken over by the city, and today you have nothing but a mess there. They’ve gone in and taken over transportation. They have created super highways, and it’s more difficult now to get from downtown to the beach than it was in the days of the horse and buggy. It’s slower. Moreover, we have gone in and created all kinds of monstrosities by exercising eminent domain. Most of the airports in this country are a liability. I’ve gone from my home on days when it was clear and sunny, to L.A. International, and it’s fog-bound day after day, winter and summer. When I travel, I have to allow half a day extra time in taking off to be able to take off dependably and get there, because I’ve had some nightmarish experiences as far as fog is concerned, within the last month, and in the middle of the summer. I flew recently to Sacramento to speak, and eminent domain had taken over the worst area, politics{?}, the most fog-bound area for the airport. The pilots screamed about it. Now eminent domain creates more problems. It creates super highways when perhaps other forms of transportation and other types of things would be developed. This has been gone into in Freeman magazine and other publications. We have created technological monstrosities rather than answers. Yes?

[Audience] {?}

[Rushdoony] I can’t quite hear you.

[Audience] {?}

[Rushdoony] Yes, public utilities are, to all practical intent today, practically state enterprises. They are so thoroughly controlled and governed, and they function as branches of the state and have, in many cases, virtually monopolistic arrangements with the state. As a result, well, let’s back up. The first utility, you might say, that did get eminent domain was the railroad, the railroad when it came West. Now, you might say this was ridiculous because the railroads were built, in the earliest days, without this. Railroads from Baltimore to New York and so on, were built by private industry, going up and buying rights-of-way, but when the railroad was built say, from the Middle West to the Pacific Coast, and there was nothing but empty country in between, it was eminent domain. What was the reason for it? Well, the reason for it was that it was a great boondoggle by socialistic entrepreneurs, if you can call them entrepreneurs, and they seized some of the best property in the United States, and then resold it to people as they came in and settled. So, the railroads were not built, in many cases, on the best routes, but over the best lands, and the railroads began as a sick industry. They’ve never been a healthy industry. Why? Because, from the beginning, they exercised eminent domain and never had a sound economic basis. They didn’t make their money on putting a railroad to California when there was practically nothing in between. They got their money in huge federal grants to build the railroad, plus getting fantastic grants of land, and then turning around and to this present day, selling those lands periodically to peoples. That was a vast boondoggle. Most of your airlines are the same thing. One scholar has made a case that actually, this kind of thing slowed down industrial advance, that before the Civil War there was more rapid development than after. In other words, eminent domain and the state subsidies actually slowed down and gave us built-in problems that we have to this day. Yes?

[Audience] {?}

[Rushdoony] No, the right of eminent domain denies any law or any Constitutional provision for compensation.

[Audience] {?}

[Rushdoony] Normally they give compensation, but they have reserved the right to deny compensation. This is a part of the doctrine of eminent domain. No compensation is necessary. This is why when you go to court, and you want a fair compensation for your property, if they feel that you’re not too nasty, they’ll give it to you, but they can clobber you and give you less than they offered in the beginning. Actually, they don’t have to give you anything. Yes, Bill?

[Audience] Exactly.

[Audience] {?}

[Rushdoony] Very good. Yes, we had another question here?

[Audience] {?}

[Rushdoony] Right. Our Lord said when the tribute money was offered, it was discussed. “Render unto Caesar the things that are Caesar’s, but unto God the things that are God’s.” The issue there was this: the thing that exercised the people of Israel most in that day was the Roman overlordship. Rome was the state, rather than the Judean rulers, and of course, if you were not if favor of revolution, you were a traitor and hated. The only question was how shall we go about revolting. There were some for open, immediate revolution, others for blowing{?} from within and so on. When they asked Jesus, Should we pay taxes to Caesar? They were trying to put him on the spot and to have him either unpopular or under arrest, because if he said Don’t pay taxes to Caesar, he would immediately be arrested by the Roman authorities. If he said Pay taxes and escape arrest, this was their thinking, then the people would turn away and say, He’s a sell-out. He’s a Roman agent. This was the whole point of this doctored kind of question, and our Lord’s answer was, Whose inscription, whose image is on this coin? It’s Caesar’s. Alright Caesar is ruling the country. Therefore, you pay taxes to Caesar. Render unto Caesar the things that are Caesar’s, and as long as Caesar is providing law and order here, he has a right to collect taxes, but unto God, the things that are God’s.

Our time is very near over, but there are a few things here that I would like to call to your attention in the November American Forests, and the title of the article is “Slow Death for DDT.” It discusses a number of the pesticides, and makes some very interesting points. It is estimated that of a million and a half tons that man has introduced into the environment, half is still at work. This is a very conservative estimate, and then it goes on to give examples of how these pesticides have longevity. In Brookhaven, Long Island, they sprayed the ponds and marshes with it. They stopped very quickly when they saw that these pesticides, DDT among them, were killing the crabs. Recently, ten years after they stopped, they took samplings and put the samplings into tanks with crabs and the crabs died immediately, indicating the longevity of the DDT and other pesticides in those marshes and ponds, and then they continue, “Because DDT stores itself in fatty cells of organisms, instead of breaking down in metabolism, it builds up as it passes along in a food chain. This biological magnification ends in astonishing concentration. Look at a food chain beginning in sea water that contains the most infinitesimal trace of DDT, say a few parts per million. The trace is absorbed into legions of vegetable plankton or diatom. Next in the chain comes the animal plankton. As one of these microscopic coco pods consumes 1,000 diatoms, it becomes host for the DDT of all of them. The consumer of 1,000 coco pods becomes the depository for the DDT originally taken in by a million planktons, step by step in the food chain. Each time something larger eats something smaller, through shrimps and tiny fish, to large fish to fish-eating birds, the concentration grows. It’s this biological magnification in the sea and on land that they’re beginning to be frightened about.

Sixty marine scientists underscored this biological magnification in July in an appeal to Governor Reagan to restrict the use of DDT in California. From the beginning of a food chain, they stated the magnification in the final host averages about 100,000 times. Then it goes on to give examples of this in Lake Michigan, where the salmon, as they pick up this in various things they eat, the biological magnification reaches the point where the salmon are not safe to eat any longer, and of course, we pick it up so that as has been pointed out, mother’s milk comes in the only container that can go across state lines without a federal ban. There is more than the safe limit in all mother’s milk today.

Then this, which they have recently found in a number of studies, has frightened them, and this is why you’re getting the present ban. Charges recently developed against the persistent pesticide envisioned a great ecological disaster if its use continues unchecked. The contingency is the destruction of the breath of life itself, oxygen. Studies by Dr. Charles F. Wurster, Department of Biological Sciences State University of New York revealed that even a few parts per billion of DDT in water reduces photosynthesis by marine plankton. It is this photosynthesis which produces 70% of the world’s oxygen. This oxygen now, 70% of the world supply, is becoming destroyed. Already, the guana{?} production in Peru has fallen off drastically, because the plankton are being killed, and the fish that feed on them are dying out, and the birds that eat it produce the guana{?} are disappearing. Thus, we are, through the science of our day, destroying the earth and preparing the way for disaster, and stopping all use of these pesticides today will not prevent the build-up for years to come, so the peak is still ahead. This is what happens when man and the state plays god. These pesticides are a product of state subsidies determined to produce them.

Well, to end on a somewhat happier note, from Larry’s Graffiti in The Register, this sentence I think is choice. “Teachers, remember, you are dealing with sensitive, high strung children who are probably armed.” And this also from The Register, from Ebb and Flo, a cartoon strip, as they’re coming home from the party, “Wow,” it says, “Those office parties are getting wilder and wilder every year,” and Flo says, “You can say that again,” and Ebb who is a little tipsy says, “Was that you I kissed in the typing pool?” “About what time dear?” With that, we are adjourned.

End of tape