Amendment V (cont’d):
In the takings clause, the framers implicitly claim that the general government has the lawful authority of eminent domain. They make this claim by indicating that the general government has the legal authority to take private property "for public use". After making this claim, they say, paraphrasing "BUT, this lawful authority of eminent domain will not be exercised without ‘just compensation’.". — Government’s claim to have a sovereign right to exercise eminent domain has existed for much longer than the united States has existed. Before the War for Independence, the King "could not take property for public use, save through exercise of the power of eminent domain with just compensation". 2 First, notice that the King could take property. Second, notice that delivery of "just compensation" was legally mandated to the victim of the taking. So even though eminent domain is a concept that is in many respects inconsistent with the global covenant, 3 it has been viewed as a sovereign right of the government since ancient times. Is there really is a sovereign right behind it? In order to answer this question, it’s necessary to examine the ancient conceptions of real property. 4
A domain is defined as, "The complete and absolute ownership of land; a paramount and individual right of property in land. . . . The inherent sovereign power claimed by the legislature of a state, of controlling private property for public uses, is termed the ‘right of eminent domain’.". 5 — "The right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good. . . . Eminent domain is the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity.". 6 — The "right of eminent domain" is government’s legal power to exert dominion over land within its geographical jurisdiction. Dominion is "perfect control in right of ownership". 7 — In case it’s not perfectly clear, let’s spell it out: According to this concept of eminent domain, the government owns the land over which it has geographical jurisdiction so that it has an absolute, primordial, indomitable dominion over it. According to this concept of eminent domain, the government allows private citizens to come into a form of secondary possession of parcels of such land. Since this concept of eminent domain is so ancient, it’s reasonable to wonder if it isn’t an aspect of feudal culture that deserves to be left in the past, and not carried into the future. Perhaps the framers – when they wrote the 5th Amendment – simply copied feudal legal concepts without sufficient analysis of their worth. Given the fact that the framers clearly lacked sufficient distinctions between jural and ecclesiastical compacts, and between secular and religious social compacts, it’s probable that they lacked critical analysis of feudal property law. The law of real property, even into the 21st century, is heavily dependent upon concepts that derive from the feudal system. In order for us to get a solid grip on the original intent of the framers, it’s essential for us to examine feudalism.
Feudalism existed in an unmodified condition in England from about the 9th ‘til the 15th century. 8 Numerous statutes and changes in custom enhanced the feudal legal foundation between the demise of the system of chivalry 9 and the incremental adoption of natural law and social contract theories of government into the English common law. By the time of the American War for Independence, Anglo-American law contained both a feudal foundation and grounding in Biblical property rights. But these are largely incompatible systems because the definition of real property in the feudal system inherently violates the Biblical concept of property rights. This incompatibility existed during the nation’s founding era, and it continues to exist in American positive law to this day. — As proof, consider this: Practically every State constitution in the united States stipulates that lands within its jurisdiction are allodial. For example, Article I § 15 of the Minnesota Constitution states, "All lands within the state are allodial and feudal tenures of every description with all their incidents are prohibited.". At the same time, the same constitution echoes the Constitution of the general government by saying in Article I § 13, "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid and secured.". — "Allodial" is a concept of land that derives from the feudal system. Using another concept from the modern law of real property that originated in feudalism, allodial land is defined as "fee simple" real property. Both allodial and fee simple absolute mean that the land at issue is owned absolutely, i.e., without encumbrances. But in feudalism, it was understood that the king had preeminent title to all the land in his dominion; and if someone had a secondary claim – even if it was a claim to allodial / fee simple land whose title the monarch respected and accepted – that secondary claim existed only because the monarch allowed it to exist. If the monarch decided to condemn land, thereby eliminating the secondary claim to it, and thereby returning the land to its primordial owner, the king himself, presumably to satisfy some royal objective, the king was within his feudal right to do so. It was the monarch’s prerogative to take land, because the land was really his in the first place, and he merely allowed the vassals, serfs, and other tenants to use the land at his own discretion. With the progress in jurisprudence entailed in things like Magna Carta, the monarch was eventually obliged to supply just compensation for takings. 10 But the fact that the monarch had preeminent claim to all land in his dominion was never seriously challenged in England, even to the present day. The united States adopted this approach to its geographical jurisdiction almost without question. The united States does not have a monarch, and it’s assumed instead that the people are the sovereign. 11 But the sovereign of the united States still has dominion – primordial ownership – over all the land within their respective jurisdictions.
Claiming that the people of the united States are the sovereign of the united States begs for definition. There are at least two issues that demand clarification in order to define this sovereign: (i)diversity jurisdiction and (ii)the mechanism by which a multitude of people can have the voice of a single sovereign. We’ll deal with the second issue first.
(ii)Since we claim to be a nation built on the "consent of the governed", such consent is inevitably the core mechanism by which the desires of such a sovereign are defined. But what form does this consent take? Here are the most obvious options: (a)unanimous consent by all human beings within the geographical jurisdiction; (b)unanimous consent by all human beings within the geographical jurisdiction who have capacity (i.e., all adults who are not too mentally or physically impaired to make the decision to consent or not); or (c)majority rule. — (a)Unanimous consent by all human beings is never a viable option, because people like infants and the mentally ill lack capacity to make viable decisions, and cannot be expected to consent. (b)In a nation composed of a general government, States, counties, municipalities, etc., that all claim to be secular, unanimous consent about anything, even when limited to those who have capacity, is so extremely unlikely that it should be treated as impossible. (c)Majority rule comports with "consent of the governed" only if every human being with capacity who lives within the geographical jurisdiction gives prior consent to abide by majority rule. This has never been the case in the united States, so majority rule is also not a viable mechanism by which to turn a multitude of people into a single sovereign. 12 Since we’ve exhausted our options, perhaps we were wrong in assuming that consent could ever be the mechanism by which the sovereign of the united States could be defined. But if this is true, then our founding documents are wrong, because if this is true, we cannot possibly have governments based on the "consent of the governed".
Understanding that the global mandate against bloodshed is not optional alleviates this quandary. Many people may choose to ignore it, and may refuse to consent to it, but that doesn’t eliminate their obligation to abide by it. So as long as the issue before the sovereign is the execution of justice against perpetrators of bloodshed, "We the people" includes all of us who are dedicated to abiding by this global mandate, and we are therefore the sovereign. But to parse this issue properly, it’s important to recognize that the mandate against bloodshed contains two fundamental obligations, a positive duty and a negative duty. The negative duty is an obligation to avoid perpetrating bloodshed against other people. This duty is not optional, and every human is subject to it, both in terms of universal moral law and globally prescribed human law. On the other hand, the positive duty is an obligation to execute justice (or equity) against anyone who perpetrates bloodshed. As universal moral law, this is not optional. But this positive duty does not exist as globally prescribed human law. So it can become human law only through contracts, compacts, and consent. So this is how the sovereign is defined in a secular social compact: The sovereign is composed of all who consent to participate in the execution of justice against perpetrators of bloodshed. 13
This is clearly not how the framers defined the sovereign. They had plenty enough troubles for their own day without having to worry about a rigorous definition of sovereignty. They used what they knew to patch things together the best they could. They tried to give minimal police powers to the general government, thereby making it a quasi-secular social compact. They tried to leave all other police powers to the States, thereby making them pseudo-religious social compacts. And they allowed the traditional power of eminent domain to remain in both the general and State governments, thereby investing in the loosely defined sovereign of these governments the monarchial dominion, primordial ownership, over all the lands. This was clearly a mistake that should be rectified in our times. Before we attempt to address that issue, we should look at how sovereignty, as we’ve defined it, functions within diversity jurisdiction.
(i)Claiming that the people of the united States are the sovereign of the united States begs for clarity about how such sovereignty is supposed to work in diversity jurisdiction. The framers clearly eschewed the national consolidation recommended by people like Alexander Hamilton. 14 They therefore intended for the States to retain their sovereignty, not to become mere administrative provinces of the general government, but rather to be member States in a confederate republic ("a more perfect Union" than the confederacy that existed under the Articles of Confederation). So they clearly intended for the citizens of the States to be first citizens of the States, and secondarily citizens of the general government. So the loosely defined sovereign of each State – each pseudo-religious social compact – would have dominion, primordial ownership, over the land within that State. The loosely defined sovereign of the general government – the quasi-secular social compact – would have a secondary, less powerful, claim to the land within any given State. So this is how the sovereign would be able to exercise eminent domain in the diversity jurisdiction of this confederate republic.
Because of the lack of clarity and rigor in the definition of sovereignty in the united States, the secular general and State governments all claim the power of eminent domain. Because of the national consolidation, the claim of the general government is normally understood now to be more powerful and preeminent than the claim of the State. So we now have a situation in which the general government is a feudal lord that has dominion over all the land in the nation; and the State governments are vassals of the national king; and local governments are minor vassals at the pleasure of the State governments; and towards the bottom of this hierarchy are supposedly private land owners who rarely own land that is truly allodial, but who own land that is heavily encumbered with claims and interests of secular governments, and easements and encumbrances of every conceivable public and private kind.
For all practical purposes, every State constitution claims that the land within its boundaries is allodial. Because of this, it’s clear that the framers intended for land within this country to be as free from encumbrances as they could conceive. They could not – or at least did not – conceive of how government could exist without the power of eminent domain. They apparently believed that government needed to retain dominion – primordial ownership of land – in order to survive. But they also intended for private land to be owned allodially, as a fee simple absolute, meaning with the fewest encumbrances possible.
The framers did the best they could with what they knew. But they left us with the dregs of feudalism mixed with a deficiently defined compact theory of government. (1)Their definition of sovereignty attempted to be a consent-based, compact-oriented definition, but it left one foot in the feudal world. (2)Their definition of the relationship between government and the land over which the government has geographical jurisdiction may have been adequate for their time, but it is not for ours. (3)Their definition of the most encumbrance-free form of privately owned land was certainly an attempt at freeing the ordinary human being from feudal bondage, but it was a definition that left government with the power to lay encumbrances on private land that far exceed any powers allowable under a more rigorous definition of sovereignty.
All the States claim the sovereign right to exercise eminent domain, and simultaneously claim that their land is allodial. According to any rational view of these two things, the two are about as consistent as (1)claiming that all people have unalienable Rights, then (2)claiming that slaves do not have unalienable Rights. — An allodium is "Land held absolutely in one’s own right, and not of any lord or superior; land not subject to feudal duties or burdens. An estate held by absolute ownership, without recognizing any superior to whom any duty is due on account thereof.". 15 Allodial land is therefore "Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.". 16 — The "feudal tenures" mentioned in the Minnesota Constitution are "The tenures of real estate under the feudal system". 17 The feudal system is "The system of feuds". 18 A feud is "An estate in land held of a superior on condition of rendering him services.". 19 In other words, a feud is an interest in real property, where the real property really belongs to some kind of aristocrat, and where – by permanently owing this aristocrat rent, service, or something else of value – this interest in the real property is maintained permanently. In other words, a feud is an interest that a serf holds in the real property that his lord really owns. 20 Because the lord really owns it, the lord has control of the wealth that emanates from the land that the serf lacks. A feud "is the same as ‘feod’, ‘feodum’, ‘feudum’, ‘fief’, or ‘fee’." 21 — On the other hand, a feodum simplex is essentially the same thing as a fee simple absolute title, which is essentially the same thing as an allodium. A fee simple absolute is "an estate limited absolutely to a man and his heirs and assigns forever without limitation or condition.". 22 — According to ancient English law, the monarch was the "universal lord and original proprietor" of all the lands in England. It was impossible for anyone to legally possess title to land except through a series of transfers "which could ultimately be traced back to an enfeoffment or patent from the Crown". 23 The monarch was the only source of legal title to land. Therefore, even a fee simple absolute, an allodium, could suffer condemnation (confiscation) by the monarch under the doctrine of eminent domain.
This conflict, this inconsistency, between allodial, "absolute" ownership of land, on one hand, and the State’s claim to have a sovereign right to exercise eminent domain, on the other, cannot be justified under the global covenant. If the land is allodial in a sense that’s lawful under the hermeneutical prologue, then the State or general government has no sovereign right to act like a feudal lord over the land, doing whatever it will, even if it claims to provide "just compensation". — On the other hand, if the State’s claim to have a sovereign right to exercise eminent domain is valid, then the land is not really allodial in a lawful sense, because the government can condemn the land whenever its officers feel compelled to do so, excusing their condemnation with claims that they provide "just compensation", and that they have a compelling state interest (whatever that is). — Rationally, land is either lawfully allodial, or it’s not. It cannot be both. — Because our concept of land that’s lawfully allodial is more free from encumbrances than allodial land in conventional jurisprudence, we’ll call lawfully allodial land, land that’s owned with absolute title, and we’ll claim that it is owned with absolute ownership. This will distinguish our conception from the feudal and conventional conceptions of absolute title and absolute ownership.
The jurisdiction of the united States social compact is strictly limited by the subject matter of the compact. This means that, from the perspective of the global covenant, this secular social compact cannot lawfully be like the king of England, claiming to be the sole source of all legitimate title to land. In other words, the government is not the ultimate owner of the lands. The people are the sovereign because this government presumes to be built on consent. This is not the people as a mob, a nameless, faceless conglomerate or proletariat. It is each individual person at the point of consent or acquiescence. It is this aggregate consent that is the sovereign, lawfully and legally, both from the point of view of the global covenant and from the point of view of the words of the framers when the latter are understood within the context of the global covenant. But when the original intent of the framers is determined by taking their words within the context of their times, rather than by taking their words within the context of the global covenant, things are much more ambiguous. Their original intent was clearly that each State would retain full police powers, which means that each State would be like the king with regard to land title. Titles would be traceable back to the State government. — If States were understood then to be secular social compacts, then the framers would not have given them full police powers. The fact that they believed that the States had full police powers is proof that they implicitly believed that the States were religious social compacts. Eminent domain is perfectly lawful within a religious social compact, because such a compact is based on prior consent. But it is not lawful within a secular social compact, because the latter is not based on the prior consent of all parties, but on the consent of those committed to fighting bloodshed. So a State’s exercise of eminent domain is essentially an act by the State of forcing the victim into selling his land. For the rare case in which this forced sale is for a lawful function of a lawful secular social compact, this forced sale might be lawful in the minarchist worldview. Such cases are rare, because States exercise full police powers even though they are clearly secular social compacts. Besides that, such a forced sale is unlawful even if it’s perpetrated for the sake of a lawful function, because it violates the natural rights polity. The fact that it’s lawful in the eyes of minimal statists, i.e., minarchists, is merely evidence that all kinds of statism, including the minimalist kind, always subordinate natural rights to the mythology of statism.
No secular government can lawfully tax or take unless it does so with the consent of the takee, and also gives just compensation. Even if it proposes to give just compensation, its power and authority to take desperately need to be curtailed to the point that it’s consistent with a rigorous definition of the sovereign. As Chief Justice John Marshall wrote in McCulloch v. Maryland (1819), "[T]he power to tax involves the power to destroy". It’s true even more that the power to take is the power to destroy. 24 This is why all the encumbrances on – and titles to – land, that are placed on the land by secular governments and their cohorts in fraud (secular banks, the Federal Reserve, the monetary system, etc.) must be meticulously scrutinized to determine whether they are lawful or not. If property taxes, easements, zoning, and other encumbrances are not rigorously curtailed, it will be impossible for religious social compacts to establish viable geographical jurisdictions, because it will be impossible for anyone to establish genuine absolute title.