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.........

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