Law, Culture and the Humanities 0(0) 1–21 © The Author(s) 2012 Reprints and permission: sagepub. co.uk/journalsPermissions.nav DOI: 10.1177/1743872112439147 lch.sagepub.com LAW, CULTURE AND THE HUMANITIES Eminent Domain and the Rhetorical Construction of Sovereign Necessity Daniel Skinner Capital University, Columbus, OH Leonard Feldman Hunter College, CUNY, New York Abstract This article examines the logic of necessity in eminent domain cases in the United States. While much has been written about “public use” justifications as adjudicated by courts, less attention has been paid to necessity. In part this is because public use is an explicit part of Fifth Amendment limitations on “takings” while necessity is part of the buried logic of sovereignty that grounds its exercise. Readings of pivotal cases from McCulloch to Kelo lead us to question recent attempts to revive necessity as a legal standard for reining in eminent domain power. Keywords Takings, eminent domain, rhetoric, Kelo, McCulloch, necessity I. Introduction Eminent domain as an inherent aspect of sovereign power recalls Hobbes’s account of the right of private property in Leviathan. Hobbes writes that, “the propriety which a subject hath in his lands consisteth in a right to exclude all other subjects from the use of them, and not to exclude their sovereign, be it an assembly or a monarch.” 1 Corresponding author: Daniel Skinner, Political Science, Capital University, Columbus, OH 43209. Email: dskinner@capital.edu 439147LCH 0 0 10.1177/1743872112439147Skinner and FeldmanLaw, Culture and the Humanities 2012 Article 1. Thomas Hobbes, Leviathan (Cambridge: Cambridge University Press, 2003), p. 172.