One of the striking features of American constitutional law is how little argument is devoted to some of its most coercive doctrines. Few examples illustrate this better than eminent domain. In contemporary jurisprudence, the power of the state to seize private property is treated not merely as legitimate, but as axiomatic: an inherent attribute of sovereignty, requiring no justification beyond procedural regularity and “just compensation.” That this power should be assumed rather than argued for is itself revealing. As Murray Rothbard recognized, eminent domain is less the product of common-law development or constitutional reasoning than of historical confusion and legal sleight of hand.
Rothbard addressed eminent domain most directly in The Ethics of Liberty, though his critique is consistent with arguments he made elsewhere regarding taxation, conscription, and regulation (such as in Power and Market). His starting point is simple: no one may justly acquire property except through original appropriation (such as homesteading) or voluntary exchange. From this premise one can follow only one conclusion. Since no private individual has the right to seize another’s property by force, even if compensation is offered, no collection of individuals calling itself a government can possess such a right either. The doctrine of eminent domain, therefore, cannot be grounded in justice. It is an act of legalized theft, no different in principle from any other coerced transfer of property.
What makes eminent domain especially interesting, however, is not merely its moral indefensibility, but the way it came to be regarded as a normal and unquestioned part of American law. Here Rothbard’s historical sensibility is particularly sharp. Contrary to standard judicial assertions, eminent domain was not a settled feature of English common law. Medieval and early modern English law—reinforced by Magna Carta and subsequent tradition—placed strong limits on the Crown’s ability to dispossess subjects of their freeholds. Where property was taken for roads, canals, or fortifications, it was done through specific Acts of Parliament, not by appeal to a general prerogative power inherent in sovereignty. These takings were political decisions, often controversial, and always exceptional.
American jurists would later misread this parliamentary practice as evidence of a general legal principle. William Blackstone’s Commentaries played a key role in this misunderstanding. Blackstone acknowledged that Parliament could authorize takings for public purposes, but he treated this as an extraordinary necessity, not as a background rule of law. American lawyers—trained on Blackstone and eager to rationalize inherited practices—transformed this exception into a doctrine. What had been legislative expediency became—in American hands—a supposed principle of common law.
The Fifth Amendment illustrates the problem perfectly. The Takings Clause, “nor shall private property be taken for public use, without just compensation,” does not grant the power of eminent domain, nor does it justify it. Instead, it assumes the power already exists and merely regulates its exercise. Rothbard was acutely aware of what this maneuver accomplished. By shifting attention from whether property may be taken to how much compensation is owed, the Constitution effectively conceded the moral question in advance. Property rights were no longer absolute claims against invasion, but conditional interests subject to state override at the proper price.
Early American courts reinforced this assumption with remarkable speed and little argument. In Vanhorne’s Lessee v. Dorrance (1795), Justice William Paterson referred to eminent domain as an inherent attribute of sovereignty, as though this were a self-evident truth rather than a controversial assertion. Later cases, culminating in Kohl v. United States (1876), would speak of eminent domain as essential to governments’ very existence. At no point did the courts seriously inquire whether such a power was compatible with natural rights, common-law tradition, or the logic of voluntary exchange. Assertion replaced argument, and precedent did the rest.
Rothbard understood this as a pattern rather than an anomaly. Emergency measures—particularly those associated with war, infrastructure, or national defense—become normalized over time. Once normalized, they are retrospectively justified by theory and doctrine. Eminent domain follows precisely this path. What begins as a claimed necessity becomes a constitutional assumption, and finally a routine administrative tool.
The evolution of the “public use” requirement makes the point particularly clear. Initially, takings were at least nominally confined to projects directly used by the public: roads, bridges, fortifications. Over time, courts expanded this to include takings for state-chartered corporations, then for urban redevelopment, and finally for broadly defined “public purposes” such as economic growth or increased tax revenue. The Supreme Court’s decision in Kelo v. New London (2005) did not represent a radical departure from eminent domain doctrine; it merely revealed its logical endpoint. Once the principle of forced transfer is accepted, the limits become political rather than moral.
Defenders of eminent domain often appeal to necessity. Without it, we are told, infrastructure could not exist; holdouts would paralyze development. Rothbard rejected this argument as question-begging. The existence of transaction costs does not justify coercion, and the inconvenience of negotiation cannot convert theft into justice. Markets develop mechanisms, easements, covenants, voluntary associations, to address coordination problems. To assume these mechanisms are insufficient is to assume the conclusion one seeks to prove.
Compensation fares no better as a defense. Forced exchange is still coercion, regardless of payment. Moreover, compensation can never account for subjective valuation, attachment, or opportunity cost. The owner’s loss is not reducible to a market price set by bureaucratic appraisal. The language of “just compensation” merely disguises the reality that one party is compelled to sell on terms dictated by another.
For Rothbard, eminent domain exemplifies the deeper problem with modern jurisprudence: the elevation of the state above the moral rules binding on everyone else. The invocation of sovereignty functions as a kind of secular divine right, a rhetorical device that halts inquiry rather than answers it. By exposing the shaky historical foundations and moral incoherence of eminent domain, Rothbard forces us to confront an uncomfortable truth: What American law treats as a natural attribute of governance is, in fact, a relatively recent and poorly-justified accretion of power.
Eminent domain did not emerge from the common law fully formed, nor was it carefully debated and endorsed at the Founding. It slipped into American jurisprudence through inherited confusion, constitutional assumption, and judicial assertion. Rothbard’s great contribution is to strip away this accumulated legitimacy and reveal the doctrine for what it is: not a necessity of social order, but a convenient fiction that allows the state to violate property rights while insisting that justice has been served.
