The Fifth Amendment – Private Property Times Three

Private Property
von Hayek

“The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.” ~ Friedrich August von Hayek

Greetings my fellow Americans!

Lest there still be any doubt as to the importance of personal property to our Founding Fathers after our unpacking of Amendments 3 and 4 of our Constitution, the Fifth includes yet another reference to its sacrosanctity from undue intrusion, and due consideration, by those upon whom the power of government in the United States has been legally bestowed.

In Three, we noted that, even in times of extreme crisis (e.g., War), government is still forbidden from taking anything without the permission of its rightful owner; in the Fourth, we highlighted the moral and ethical boundaries by which those in authority are constrained, under oath to our Creator, from searching and seizing private property, and the lengths to which they should be subjected when accusing private citizens of having forfeited this otherwise “unalienable” right.

Amendment Five states, “…private property shall [not] be taken for public use, without just compensation.” Now, as with all of the language in our supreme law, this clause again relies on the listening of a “moral and religious people” (John Adams) to interpret what is “private,” “public,” and “just compensation” here. Furthermore, it was implied that those doing the taking within our representative republic could, and would, be held directly accountable for their actions regarding the treatment of the citizenry, both just and unjust, legal or illegal. In other words, there would be real and relatively immediate consequences to those prosecuting the seizure of property, especially without perceived just cause and compensation, making such action much less desirable to take.

I can’t help but wonder, at times, whether the Founders should have even explicated this notion of “just compensation,” as it as much as granted the government permission to “take” private property, as long as the compensation for that taking was “just.” Would it have been better had they stopped alluding to property rights with Amendments 3 and 4, making it much less possible for the written language regarding “just compensation” to be twisted or morphed?

Of course, this could have also been said about the entire Bill of Rights, inasmuch as it provided additional written language which became open to reinterpretation, loophole, and/or restatement or reinvention of societal principles which would have otherwise been more obvious to a “moral and religious people.” By at least some accounts, ratification of the whole of the Constitution was tied to the addition of these amendments; based on how these additional words have been exploited for political gain over the life of this great nation it seems that silence on these particulars may have lent greater strength, and fostered greater prudence in, abidance of the language of the Constitution proper.

Be that as it may, we have instead been explicitly told to determine what is “just” with regard to compensation for property “taken,” and that the latter is subject to seizure on that basis. Perhaps in the context of the height of that confiscatory bar set in Amendment 3, and the seriousness of the oaths-of-office interjected in 4, this provision in Five was more self-explanatory. Regardless, we now seem to have a central government more than willing and able to sequester significant parcels of land and resources from private ownership without much justification or remuneration to those most affected by the deprivation. But the Constitution as ratified does explicitly sanction such taking by virtue of the last clause of Amendment 5, and provides little restraint to a people for whom the Constitution is otherwise “wholly inadequate.” (John Adams

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