The Duplicity of Original Intent

The founding fathers were concerned that the government they were creating would have the power to take people’s property for public use without the owner’s permission. In the 5th Amendment, the so-called takings clause was added which stated that property could only be taken for public use and the property owners must be fairly compensated. States followed suit with similar provisions in their constitutions.

Over time, the process called eminent domain was used for vital public uses such as highways, public buildings, parks, etc. But the concept of the use of eminent domain being a process for the taking of property for public use has been perverted to taking of property for “public purpose”. The original intent of the 5th Amendment has been ignored.

Through decisions of the U.S. Supreme Court, public purpose has increasingly become linked to economic value. If the new use of the property can be justified as one benefitting the public via greater economic returns, then eminent domain applies. This new interpretation has proven to have devastating consequences on those of lower socio-economic status. It’s hard to believe that this was the original intent of the founding fathers.

While the founding fathers had seemingly spelled out the dangers of governmental entities taking of property, the enforcement of the takings clause in the 5th Amendment has been lax by all three branches of government. One of the most blatant examples is the confiscation of the homeland of Native Americans.

President Thomas Jefferson began the removal of Native Americans from their homeland. In 1828, the State of Georgia passed laws which in effect removed the Cherokee Nation from their homeland in the State. When the Cherokee Nation fought their removal, the U.S. Supreme Court declined to rule on the case because they lacked standing. Chief Justice Marshall, another founding father, wrote this shameless justification. Opinions of other justices were equally shameful, calling the Cherokees wandering hordes. The 5th Amendment never entered into their decision-making. So much for original intent.

Later the Supreme Court, in an apparent act of conscience, reversed their decision. President Andrew Jackson ignored the Supreme Court and ordered the U.S. military to begin the removal of the Cherokee Nation in what we now call The Trail of Tears. There was no consequence to his ignoring of a Supreme Court action.

Just imagine the precedent set by the removal of the Cherokee Nation from their natural lands on subsequent developments throughout U.S. history. While the concept of “original intent” has become popular in the viewing of cases brought to the U.S. Supreme Court, this concept continues to be ignored when a powerful interest has a desire of taking the property from a less powerful interest.


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“…nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation….”- (the relevant section of the 5th Amendment as it applies to the taking of property)

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