As Daniels points out, many view the Kelo decision as a low point in the protection of property rights; however, that ruling was not a departure from past cases.
Public outcry notwithstanding, the Kelo decision did not represent a substantial worsening of the state of property rights in America. Rather, the Kelo decision reaffirmed decades of precedent—precedent unfortunately rooted in the origins of the American system. Nor is eminent domain the only threat to property rights in America. Even if the federal and state governments abolished eminent domain tomorrow, property rights would still be insecure, because the cause of the problem is more fundamental than law or politics.
Daniels traces the roots of the crisis back to the nation's founding, and most specifically the Founder's acceptance of eminent domain. By codifying such an egregious violation of property rights in the Constitution, the Founder's provided a powerful tool to statists.
In the Revolutionary era, America’s Founding Fathers argued that respect for property rights formed the very foundation of good government. For instance, Arthur Lee, a Virginia delegate to the Continental Congress, wrote that “the right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” In a 1792 essay on property published in the National Gazette, James Madison expressed the importance of property to the founding generation. “Government is instituted to protect property of every sort,” he explained, “this being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
Despite this prevalent attitude—along with the strong protections for property contained in the United States Constitution’s contracts clause, ex post facto clause, and the prohibition of state interference with currency—the founders accepted the idea that the power of eminent domain, the power to forcibly wrest property from private individuals, was a legitimate power of sovereignty resting in all governments. Although the founders held that the “despotic power” of eminent domain should be limited to taking property for “public use,” and that the victims of such takings were due “just compensation,” their acceptance of its legitimacy was the tip of a wedge.
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