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June 14th, 2012


By Nathan Tucker

We, as taxpayers, have been Keloed.  It is amazing how the same politicians who criticized the Supreme Court’s decision in Kelo allowing the government to seize one person’s property to give to another have no problem doing the exact same thing with our income property.  It is a distinction without a difference.

Many politicians, and unfortunately too many citizens, believe that the government can tax and spend for the “general welfare” of society, whether to provide a “social safety net,” increase “energy independence,” or bailout bankrupt companies considered “too big to fail.”  Differences of opinion lie only in the programs and recipients, not in whether government has such power in the first place.

It is often assumed that, since we are a democracy, a majority has the right to rule as they see fit within constitutional perimeters.  While minorities often disagree with the policies of the majority, they do not claim that the power exercised is illegitimate.  They simply wish to exercise the same power according to their own policy preferences.

However, a democracy is not an end but a means by which to diffuse power and hold it accountable so as to check its abuses.  Government is the business of exercising coercion and control, and it becomes no more legitimate simply because its form is democratic rather than totalitarianSuch power is only legitimate when used to, as the Declaration states, secure man’s natural and inalienable rights to life, liberty, and property.

In order to ensure man’s property rights, the Fifth Amendment provides that “…nor shall property be taken for public use, without just compensation.”  In Kelo, the Supreme Court eviscerated the term “public use” when it held that the government could take property from A to give to B in the name of “economic rejuvenation.”

Public outrage was immediate, and 43 states passed laws reinforcing their eminent domain laws.  Iowa, for instance, now provides that public use “does not mean economic development activities resulting in increased tax revenues, increased employment opportunities, privately owned or privately funded housing and residential development…or commercial or industrial development…”

But if government cannot take some of your physical property to, say, give to an ethanol plant in the name of “economic rejuvenation,” why is it morally permissible for it to do so through the tax code?  If the government cannot seize the food in your refrigerator to feed the hungry to create a better able-bodied workforce, why can it seize a portion of your income to do the same?

If it cannot pillage the medicine in your cabinet to prevent “45,000” people from dying each year without health insurance, why can it accomplish the same thing through raiding your checkbook?  The only distinction is one of evasiveness and degree, not one of principle.  This coerciveness might be felt more poignantly if taxpayers actually had to write Uncle Sam a check every April 15th rather than have their taxes automatically withheld by their employer.

The principles of the 5th Amendment’s eminent domain protections should apply with equal moral force to the government’s taxing power.  Quoting Sir William Blackstone, Justice Thomas noted in his Kelo dissent that “so great…is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community.”

Citing examples of “quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks,” Thomas concluded that the term “public use” refers to public property that “the government or citizens as a whole must actually ‘employ.’”

By the same principle, the public use requirement should therefore limit taxation to providing revenue for government’s three core public functions—national defense, a criminal and civil justice system, and those functions the free market is unable to perform (infrastructure, public utilities).  In contrast, wealth redistribution merely gives from one individual to another for his own personal use.

The 5th Amendment also requires “just compensation” when the government seizes one’s property.  Building on the thought of Thomas Aquinas, Frederic Bastiat notes that taxation is only a fair exchange between the government and its citizens when the state “performs services for the public equivalent to the value it receives from the public.”  Not only does it discourage wasteful and deficit spending, but a fair exchange is incapable of being applied to anything other than a “public use.”

Taxation cannot simultaneously serve two masters; it either protects property rights or it becomes legal plunder.


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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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