No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Most of this amendment adds reinforcement to due process, and is therefore helpful in assuring that the government avoids perpetrating bloodshed against its citizens. There is nothing obviously wrong with any of the 5th Amendment, except the last clause. For the sake of keeping our courts honest and government powers safely constrained, this amendment marks the following as illegitimate: (i)holding a person for a crime without grand jury indictment / presentment; (ii)double jeopardy; (iii)forced self-incrimination; and (iv)deprivation of life, liberty, or property without due process. These constraints are worthy safeguards that deserve our praise. But the last clause is troublesome. In contrast with the other clauses, the clause, "nor shall private property be taken for public use, without just compensation", gives government extraordinary powers to take, and it is therefore troublesome. This last clause is commonly known as the takings clause. All the previous clauses are essentially safeguards to be adopted by jural societies and narrowly-defined ecclesiastical societies to help them to avoid perpetrating bloodshed in their performance of their duties. But the last clause tends to be an institutionalization of government-perpetrated bloodshed by way of the fact that it obscures the distinction between lawful taxes and takings, and unlawful taxes and takings.
As indicated in Article I § 8 clause 1, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises". Assuming that the Constitution is being read through the metaconstitutional hermeneutic, the taking mentioned in the last clause of this amendment might be conceptually encompassed by the "Taxes, Duties, Imposts and Excises" phrase. On the other hand, it might not, since, as part of an amendment, the takings clause carries the same weight as the rest of the Constitution. Regardless of whether 5th Amendment takings are encompassed by Article I § 8 taxes, duties, imposts, and excises, or not, takings were an ordinary power of European governments during the founding era. The significant difference between taxes and takings, in general, is that taxes are generally applicable, while in the cases of a taking, a single individual or set of individuals is singled out to suffer a governmentally imposed burden on "private property". This has been understood historically to mean primarily a burden on real property that is privately owned. — As has been emphasized throughout this inventory, consensual government and non-consensual taxation are oxymoronic. They are incompatible. Exercising that oxymoron is the essence of statism. The same must necessarily be true of governmental takings of "private property" that may happen to be real property. This line of reasoning leads to a question: Is this consensual / non-consensual oxymoron the reason this takings clause tends to bloodshed?
Yes, that’s the reason this takings clause is troublesome. No human government, organization, institution, or individual has a lawful right to violate the property rights of another human being. According to the hermeneutical prologue, taxation is not an exception to this claim, and neither are takings. According to the hermeneutical prologue, taxation is lawful only when the people being taxed have given prior consent to the taxation. So if takings are lawful, then they must abide by this same basic standard to which lawful taxation must conform. That’s because every lawful tax is in fact a taking applied generally to a larger population. 2 Taxes are a form of taking. Since the 5th Amendment states that all takings must be justly compensated, it follows rationally that all taxes must be justly compensated. The assumption that taxes must be justly compensated is built implicitly into consensual government. If the government doesn’t do what its citizens pay it to do, then even the founding documents of this country implicitly indicate that the citizens are not being justly compensated by the government, and such a failure is just grounds for "the People to alter or abolish [the government], and to institute new Government". So just compensation is implicitly demanded in normal taxation, and explicitly demanded in 5th Amendment takings. Common sense demands that taxation is generally nothing but a breed of taking that happens to be generally applicable. The government takes tax revenues. In other words, the de facto government uses confiscatory methods to procure taxes. So everything that the hermeneutical prologue proves – based on Biblical principles – about the nature of lawful taxation, it in essence simultaneously proves about lawful takings. We will start proving our claim that the takings clause tends to bloodshed, by reviewing the nature of lawful taxation (lawful takings).
Any given social compact has two fundamental and distinct functions: jural functions and narrowly-defined ecclesiastical functions. Both of these constitute responses to bloodshed. Bloodshed is defined as damage perpetrated by one person or set of persons against another person or set of persons. Bloodshed can arise out of two and only two sources, either out of violation of a contract or not out of violation of a contract. If it arises out of the violation of a contract, then the bloodshed is ex contractu. If it arises outside of any contract, then the bloodshed is ex delicto. Both bloodshed ex delicto and bloodshed ex contractu are delineated by the only human law prescribed in the global covenant: "Whoever sheds man’s blood, By man his blood shall be shed" (Genesis 9:6; NASB). By defining the terms in this mandate as practically and rationally as possible, we come to understand what bloodshed is, and we come to understand that the response to bloodshed is a moral mandate to every living human being. Scripture imposes a moral mandate to execute justice against both bloodshed ex delicto and bloodshed ex contractu. This moral duty arises out of the Genesis 9:6 positive duty clause. This positive duty constitutes a globally prescribed penalty to be executed by human against the human perpetrator. The negative duty clause describes the globally proscribed action, where that prohibited action is the perpetration of bloodshed ex delicto or ex contractu. The positive duty describes the penalty. So the negative duty clause constitutes globally prescribed human law, because there is a prescribed penalty for it, where the penalty is to be executed by human against human. But the positive duty clause does not constitute globally prescribed human law, because there is no prescribed penalty for it. Under this regime, there is a global, human-law warrant against perpetrators of bloodshed, regardless of whether it’s ex delicto or ex contractu. But under this regime, there is no global, human-law warrant against people who refuse to execute justice against perpetrators of bloodshed. So such execution of justice is called for morally, but it is not called for by globally prescribed human law. So the execution of justice is voluntary. There is a moral demand for it, but there is not a globally prescribed human-law demand for it. When people enter into contracts, and more formally, into social compacts, to execute such justice against perpetrators of bloodshed, then there may be a human-law mandate under the jurisdiction of such contract / social compact to execute justice against bloodshed ex delicto or ex contractu.
Given this review of the fundamental features of the natural rights polity, we can review the distinctions between jural functions and narrowly-defined ecclesiastical functions. The fact is that many people, perhaps most, lack capacity to execute justice against perpetrators of bloodshed, because they’re too weak, too sick, too old, too young, too busy with other pressing issues (like child-rearing), or subject to many other possible disabilities that mark those who lack capacity. So, to satisfy this global moral obligation, jural societies and narrowly-defined ecclesiastical societies have arisen as de facto features of jurisdictionally dysfunctional social compacts. Jural societies are composed of people who have both the ability and the calling to function as enforcers against bloodshed ex delicto. Likewise, narrowly-defined ecclesiastical societies are composed of people who have the ability and the calling to function as enforcers against bloodshed ex contractu. It’s important to keep the jural functions and the narrowly-defined ecclesiastical functions distinct because the jurisdiction defined by any given disputed contract determines the manner in which bloodshed ex contractu should be adjudicated. In contrast, there is no such contract in cases of bloodshed ex delicto.
To satisfy the global moral obligation to execute justice against perpetrators of bloodshed ex delicto, people who live within the geographical jurisdiction of a given jural society may be morally obligated to pay taxes to support the jural society. Likewise, to satisfy the global moral obligation to execute justice against perpetrators of bloodshed ex contractu, people who live within the geographical jurisdiction of a given narrowly-defined ecclesiastical society may be morally obligated to pay taxes to support the narrowly-defined ecclesiastical society. But neither of these moral obligations translates immediately and automatically into human-law obligations. In both the case of the execution of justice ex delicto through the jural society, and the case of the execution of justice (or equity) ex contractu through the ecclesiastical society, moral obligation to pay taxes translates into a human-law obligation only by way of the consent of those presumed to be morally obligated. So if takings are lawful, then such consent is a necessary prerequisite to them being so. Likewise, if takings are lawful when they are exacted by a jural society or a narrowly-defined ecclesiastical society, then such revenues to such societies can be spent lawfully only on the execution of justice ex delicto and ex contractu, respectively. If the takings happen to be real property, then the same principles apply. The takings must be consensual, and they must be used for lawful purposes and functions.
No doubt most people who first encounter this claim that taxes and takings must be consensual react with skepticism. How can secular governments be funded if not through confiscatory taxes and takings? We’ve already answered this question in regard to taxes, i.e., generally applicable takings. Revenues to secular social compacts exist lawfully only by way of voluntary giving, presumably at the request of such compact. Such voluntary giving is highly dependent upon the willingness of religious social compacts to funnel voluntary revenues to secular social compacts. In the case of 5th Amendment takings, the takings must still be voluntary and consensual. But unlike ordinary taxes, which are generally applicable, 5th Amendment takings are applied to a specific set of individuals, generally pertain to the taking of real property, and must be justly compensated by some specific, one-to-one correspondence between the value of the real property and the compensation.
Historically, 5th Amendment takings have been inherently confiscatory. They have been inherently confiscatory because the specific people making the donation are being forced to make the donation regardless of whether they want or consent to make it or not. It’s as if someone came up to you on the street, poked a gun in your face, and said, "What’s the going price for your coat?". This thug may give you a decent price for your coat, but that doesn’t change the fact that you were coerced. If the coercion exists to pay for lawful functions of a secular social compact, then the taking would be better than if such coercion did not exist to pay for lawful functions of a secular social compact. But such a coercive taking would still be unlawful because of the coercion.
Because 5th Amendment taking generally involves real property, it has historically involved the exercise of eminent domain. As will be evident in the upcoming pages that are dedicated to the 5th Amendment, eminent domain has feudal origins, and there is no place for it under the natural rights polity. From the point-of-view of the global covenant, the exercise of eminent domain is not legitimate even if it’s limited to doing things like, for example, installing a military base or a police station, at some specific location. Historically, not only has secular government been wrong because it has exercised eminent domain, but also because it has used the confiscated real property for purposes other than the lawful functions of a secular social compact, meaning lawful jural and narrowly-defined ecclesiastical functions. Under the auspices of the natural rights polity, we’re bound to conclude that if takings exist for more frivolous enterprises, like building "Post Offices", "post Roads", highways, railroads, airports, ditches, canals, pipelines, shopping malls, etc., then such an exercise of eminent domain is inherently bloodshed on two counts, and not merely one. It is bloodshed (i)because it is essentially stealing real property, and (ii)because the real property is to be used by the thieving government for purposes that are unlawful for a secular social compact. Such abuses of authority were condoned in medieval, feudal, and other inherently flawed systems of law and lawlessness. They have been presumed lawful in the united States by way of the 5th Amendment. But they are not lawful under the natural rights polity.
In conclusion, we claim that consistency with the hermeneutical prologue demands the following: If the taking happens under the following conditions, then it may be lawful under a secular social compact: (a)The taking is not really a taking because the real property is voluntarily donated by the would-be takee. (b)The taking is executed strictly to satisfy a lawful need of a secular social compact, meaning lawful jural and/or narrowly-defined ecclesiastical functions. (c)The victim of the taking receives "just compensation". To show how to apply this conclusion to American jurisprudence, we’ll consider the following: (i)the original intent of the framers with respect to this takings clause; (ii)the basics of free market economics; 3 and (iii)how America was settled. After examining these three things, we’ll overview the nature of takings under our early 21st century secular governments. 4