The Supreme Court’s decision in Kelo v. City of New London has disclosed one of America’s dirtiest secrets: In this country founded, so we are told repeatedly, on the liberal trinity of rights to life, liberty, and property, our claims to property are as tenuous as the liberty of Christian parents with children in public school or an unborn baby’s “right” to be born.

The reaction to Kelo has been swift.  While some “conservatives” and libertarians have pretended (they cannot expect anyone to take them seriously) to regard it as a states’-rights decision, most have risen up to denounce Kelo, and, in more than a few state legislatures, bills have been introduced to limit the scope of eminent domain.  But the response is not as encouraging as it might appear.  State and local governments have grown used to receiving money from developers—a far less troublesome source of new revenue than tax increases—and much of the conservative outrage, right-thinking as it seems, is nothing better than the rhetoric of professional fundraisers.  Where were these conservative defenders of property when the federal government was confiscating vehicles in drug cases, when state troopers set up barricades to check drivers’ licenses, when thousands of Americans were being dispossessed of their property for such good causes as welfare slums, baseball games, and recreational boating?

Most of the debate has taken place, perhaps rightly, in the context of the Constitution, which anticipated the confiscation of property for post offices and roads.  The Fifth Amendment, however, stipulates that “No person . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  This amendment, as every schoolboy should know, was designed to limit the federal government and not the states, but, through the magic of the Incorporation Doctrine, all the safeguards erected against federal arrogance have been turned into so many weapons against the states and the people.  Still, it would be useful to get behind the amendment and discover what was on the minds of the Americans who wanted it.

Some American property owners were concerned that the federal government might intervene in the disputes between dispossessed Tory and British landowners and the states that had dispossessed them.  George Mason, in the Virginia debate, expressed concern that the federal government might uphold the Fairfaxes’ claims to the Northern Neck, but he was reassured by John Marshall that this could never happen.  Was Marshall already intriguing with the Fairfax claimants whom he later served as legal representative?  How little changes in the character of the Court Party.

More to the point was New York’s resolution of July 1788: “That no person ought to be taken, imprisoned or disseized of his freehold, or exiled or deprived of his privileges, franchises, life, liberty, or property, but by due process of law.”  This language clearly echoes Magna Carta (39): “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”  Feudal land tenure is an exceedingly complex subject, but the basic point is clear enough: The king promised not to dispossess a baron of his freehold except according to law or by the judgment of the barons.  This evolved into a basic English right, which the New Yorkers wished to maintain.

Eminent domain is one of many areas of law (another is citizenship) where English precedents have not served the American interest.  In the years following the Norman invasion, over 90 percent of the property in England went from Anglo-Saxon to Norman hands.  Worse, the land was granted by the king as benefices conditionally to his vassals.  That is, the recipient was bound to perform services or make payments and could not in every case pass the estate to his heir.  Naturally, the Norman barons had struggled, often quite successfully, to convert their benefices into heritable estates, while the kings were just as eager to maintain their prerogatives.  Civil wars were a great opportunity for an ambitious baron to improve his position.

Now, there was nothing unusual in any of this.  On the Continent, Merovingian and Carlovingian rulers had engaged in a similar struggle with their vassals.  At root is the distinction (found even in Blackstone) between feudal or fee-simple property that is held conditionally from the crown and allodial property that not only is owned outright with no strings attached but also is inalienable.  In Britain, there is said to be no allodial property, and, despite many claims to the contrary, there is very little in the United States.  While the property of churches, colleges, and Indian reservations is, for the time being, inalienable, the titles to houses, farms, and businesses supposedly owned by Americans are contingent upon payment of taxes and government-backed mortgages, and they are subject to the whim of any county politician just smart enough to know that the only point to political office is the bribes it attracts.

It seems strange that, in a modern world that hates all things medieval, we should still be subject to a feudal concept of property.  The reason is not far to seek.  The Renaissance princes who built great nation-states were quick to see the advantages of a theory of property that gave them ultimate authority over every acre of land in their kingdoms.  In the Laws of War and Peace, the Dutch jurist Hugo Grotius overlaid the state’s natural rapacity with the philosophical veneer of eminent-domain theory.  There are two kinds of right, argues Grotius:

the one private, established for the advantage of each individual, the other, superior, as involving the claims, which the state has upon individuals, and their property, for the public good.  Thus the Regal authority is above that of a father and a master, and the Sovereign has a greater right over the property of his subjects, where the public good is concerned, than the owners themselves have.  And when the exigencies of the state require a supply, every man is more obliged to contribute towards it, than to satisfy his creditors.

By eminent domain, then, the state exercises a regal authority over all the subjects’ property, wherever the sovereign decides that “the public good is concerned.”  It does not require the Machiavellian genius of the late Samuel Francis to realize that, in each and every case, public good means the sovereign’s good, and it hardly matters whether sovereignty is exercised by ward-heeling city councilmen or the state-heeling members of the U.S. Senate.

To grasp how monstrous this principle really is, we have to turn to older and better conceptions of property.  In ancient Greek and Roman societies, real property was virtually inalienable.  When a Licinius Crassus objected (in 179 B.C.) to an aqueduct being built across his property, on the grounds that it served luxury (baths, for example) rather than necessity, he was upheld.  Crassus’ wealth and influence may have served his cause, but his argument was just.  Nearly two centuries later, the emperor Tiberius compensated a landowner who complained that his property was damaged by the construction of a road and aqueduct.  Cornelius van Bynkershoek, the 18th-century Dutch theorist who cites these cases to show the superiority of Roman law’s protection of property, comments:

He who would with me postulate the principle that necessity or public utility is requisite for the exercise of eminent domain will exclude all other cases without exception.  Or would you hold that the subject is not only obliged to give up his property for these two reasons, but also to gratify the pleasure and delights of the public and even for the adornment of public places?

Of course, the property of traitors and rebels was subject to confiscation, and many a Roman who fell afoul of the emperor opted for suicide in order to preserve the family’s property for his heirs.  As Henry Sumner Maine noted in Ancient Law (a vitally important book), the Romans, even as they became individualist in reality, never escaped the primitive conviction that a proprietor does not fully own an estate but serves more as a steward, a link between the ancestors from whom he inherited it and the descendants to whom he bequeaths it.

Among early Athenians, a family’s property passed automatically, on the proprietor’s death, to his sons, among whom it was equally divided.  If there were no sons, the members of the clan decided how the property was to be assigned.  Since this might work a hardship upon daughters, the law was modified to allow for wills and adoption.  The expectation remained that a man’s property would go to his nearest male heirs, his sons if he had any.  Of course, he was expected to provide a dowry for his daughters, which constituted their inheritance.  If there were no sons or issue thereof, the daughters or their children inherited and, in the absence of any living descendants, a man’s collateral relatives on his father’s side.  The preference went to males up to the degree of children of first cousins.

Under this system, a man without children might adopt a son, who would automatically inherit the estate, or make a will, devising the property to a specific set of relatives or friends.  But even in such a case, the male relatives of the deceased would often sue to have the will overturned.

What is the point?  Simply this: In ancient law, generally, a family’s property—farm, house, workshop—were viewed as the indispensable means by which the family maintained itself across the generations.  Ideally, this property could not be alienated, either by an aggressive government or by a greedy proprietor who disliked his children.  Since the commonwealth is made up of families and kindreds, it would have been dangerous as well as self-destructive for the Athenian polis or the early Roman Republic to confiscate property, thereby creating powerful enemies and undermining the very foundations of the commonwealth.  (In the Roman world, however, there was one important exception: The republic retained a sort of feudal title to territory conquered from Rome’s enemies and acquired by Roman citizens.)

Property rights, which occupied so great a part of Roman law, were an essential part of republican liberty, even under the early empire.  Just as a citizen of the republic was exempt from taxation except during wartime, most of his property was immune to confiscation.  It was in this sense that a Roman could regard himself as free and would regard Americans today as servile.

I am not proposing to restore Roman (much less Athenian) property laws, and I cite these examples rather to show the dangers lurking beneath the apparently smooth surface of the Anglo-American conception of property.  The most obvious danger is that our view of eminent domain is essentially feudal rather than republican.  It hardly matters that the sovereign is supposed to be the people, because, even if it were true (as it certainly is not), a majority may act as tyrannically as a dictator.

A second danger lies in our individualistic conception of real estate as a commodity to be bought and sold by individuals.  A clan knows how to protect its members, but individuals and nuclear families, although they are the theoretical basis of our political and legal system, have absolutely no influence over politicians—unless they can offer a higher bribe than the developer’s.  It is no accident that all modern states, whether democratic or Marxist, have labored to destroy the multigenerational bonds that connect hundreds of powerless individuals into a potent defensive alliance.

Radical individualism, when adopted as a dominant political ideology, provides a constant incentive for governments to intervene in the anarchy that pervades relations among isolated and self-seeking individuals, whether they are acting in the public market or in the privacy of their homes and shops.  When the theory of human rights is thrown into the mix, the very Devil himself is invited into our lives, pitting customer against storekeeper, wife against husband, child against parents.  In such a world, the very world in which we live, governments become the arbiters of every conflict, no matter how petty, and the absolute sovereign over our most private affairs.  Whether it is helping our daughters to kill our grandchildren or giving to Wal-Mart the property our grandchildren were to inherit, government (at least potentially) makes every decision.

In giving up the extended family, Americans have also abandoned the whole idea of home.  For real-estate agents, every house is a “home,” and the whole point of the business is to encourage home-owners to turn over their property every few years and move up.  Can greedy politicians really be blamed for thinking we view our property as fungible investments rather than as hearth and home?

No constitutional amendment or state law can restore the only sound basis of a commonwealth, which are autonomous households integrated into networks of kin and community.  There are, however, some measures that might be adopted to preserve and extend what property rights we have.  Such a model bill would, first of all, have to restrict eminent domain to cases of public necessity or great utility.  Ball clubs and commercial developers need not apply.

Second, strict mechanisms would have to be stipulated both for exercising eminent domain and for compensating the victims.  It is not enough, in many cases, to pay fair-market value on business property on which the owner may have spent both time and money that he might have applied in other ways.  Just compensation should include a fair return on investment, the cost of relocation, and even lost opportunity costs.  Compensation cannot be left up to either judges or politicians alone.  An arbitration panel, with both sides equally represented, would have to make difficult decisions.

Third, a distinction should be made between family property and investment property.  Few business owners would pass up the opportunity to make a decent profit on their investment, but a man and wife who have inherited or built up a farm or business and hope to pass it on to their descendants can rarely be satisfied by monetary compensation.  They are being robbed of their lives.  In such a case, the bar should be set higher at the level  of absolute necessity.  Roads and bridges (like aqueducts) can often be put in more than one place, and the burden of proof should be on government, not the property owner.

The democratic theory of majority rule, when combined with a monarchical theory of eminent domain, gives American governments far more power to seize our property, homes, and businesses than any English king since William I has had over his subjects.  In the short run, American citizens (or rather subjects) need to pressure their state legislatures into restricting the application of eminent domain.  In the long run, however, we need to abandon theories of democracy and property that, under the Old Republic, were capable of only minor abuses, because today these antiquated notions are as toxic as 200-year-old nuclear waste.