Back To Basics

 How then can order be brought forth from this chaos? To bring some reason to the question of when owners should be compensated for losses they suffer as a result of regulations that restrict the uses they can make of their property.

The answer, as always, is to return to the Framer's principles. Only then will we sort the issues out and shed light on the problem. What that means, in particular, is that we have to get clear about the relationship between two fundamental powers of government. The police power, which is the basic power of government, and the power of eminent domain, which is implicit in the Fifth Amendment's Takings Clause. We have to relate those two powers, not by 'balancing' them, as is too often thought, but by explicating their justifications and then relating them in a principled way. That is not a matter of balancing values, so called, but of discovering and applying principles. The police power, government’s basic power, is the power to secure our rights. John Locke, the philosophical father of the American Revolution and the Declaration of Independence, put it well: the police power is the 'executive power' that each of us has to secure his rights in the state of nature, prior to the creation of government. When we come together to create government, the ratification of a constitution being the closest thing to that, we yield that power up to government to exercise on our behalf.

The source and ultimate justification of government's police power, then, is found in the individual's right to protect himself, to secure his own rights. However, that foundation also marks the limits of the police power. None of us, that is, has a right to secure rights he does not have, to take the liberties of others, for example, if those others are violating no rights of ours. We may not like what our neighbor is doing, but if he is violating no rights of ours, if he is taking nothing that belongs free and clear to us, then we must tolerate his doing it. Our rights and his bound our executive power, in short. It is not a power to do anything we want however noble our motives might be in a given case. There are times, presumably, when we want government to do more than it can do legitimately under the police power alone, limited as that power properly is by the rights of the individual. For that reason, the Framers recognized the power of eminent domain, 'the despotic power,' as it was called. The power to condemn and thus take private property.  It was a despotic power, however, because eminent domain enabled government to take what did not belong to it, the only way to mitigate that wrong, to preserve some measure of legitimacy, was to make the owner-victim whole, to compensate him for his loss. Thus, the just compensation requirement as found in the Fifth Amendment.

Under the power of eminent domain, then, government may pursue various public ends, provided only that it compensate those whose property it needs to take in the process. On one hand, public projects can go forward. On the other hand, the just compensation requirement protects both property owners, who are left whole, and the public, which will not have to pay extortionate compensation to gain title to any property that might be needed. Armed thus with both the police power and the power of eminent domain, government may secure not only our rights but various public goods as well, again, provided only that owners are compensated in the course of pursuing those goods.