Magazine November 2, 2015, Issue

Property Rights Trumped

The Donald’s appalling record on eminent domain

Suppose that the federal and state governments were to claim the right to take private property by force, and to do so not upon the plain “public use” grounds that are laid out in the Fifth Amendment to the Constitution, but in order to help those who are in search of private profit. Suppose, too, that the Supreme Court were to endorse this claim, on the preposterous supposition that “public use” in effect means “private use” if tax revenues are involved. And, finally, suppose that an extraordinarily rich man were to praise this alarming arrangement as “wonderful,” to advance the most naked of utilitarian arguments in its favor, and to brag about his having used it as a cartoon scoundrel might.

How do you imagine conservatives would feel about this state of affairs? I ask because, for the moment, at least, this is the reality with which the American Right is faced. For decades now, America’s federal and state governments have made precisely the claim I adumbrated; since 2005’s Kelo v. City of New London ruling, the Supreme Court has accorded those governments its blessing to take private property, and on exactly the grounds I mentioned; and, for the last few months, the extraordinarily rich man to whom I referred has not only been spared the tar and feathers of the mob, but has enjoyed a commanding lead in the Republican presidential campaign.

Have we all gone mad?

Of all his many transgressions against American conservatism, Donald Trump’s unchecked enthusiasm for the use of eminent domain is far and away the most egregious. As John Locke and his accomplices in liberty understood so well, the right to be secure in one’s property is at the very heart of what it means to be free — the sine qua non of ordered liberty. “Even public necessity,” William Blackstone contended in 1765, must be subordinated “to the sacred and inviolable rights of private property,” for a self-ruling country “will not authorize the least violation of it; no, not even for the general good of the whole community.”

At this contention, Donald Trump bites his well-manicured thumb and indignantly shouts, “Pah!” For the last three decades or so, Trump has been on a veritable crusade against those who would exhibit the temerity to reject the designs of the masters of the universe in the interest of keeping their own land. When, in October of this year, he told Fox News’s Bret Baier that contemporary eminent-domain standards are a “wonderful” thing, he raised a few eyebrows — even among his most vehement backers. But this was no late-night slip-up or temporary pander; it was an indication of who Trump is at his core. “I don’t think [eminent domain] was explained to most conservatives,” he later submitted on Fox News.

He, of course, grasps the issue well: “Nobody knows this better than I do, because I’ve built a lot of buildings in Manhattan, and you’ll have twelve sites and you’ll get eleven and you’ll have the one holdout, and you end up building around them.” And what, pray, of that twelfth person? Does he have a right to his property? Apparently not, no. “If you were going [to use eminent domain] to rip down a house and build another house, no way,” Trump concluded, rather self-servingly. “But if you’re going to build a factory that’s going to have 5,000 jobs, that’s entirely different.”

As keen-eyed observers have noticed, Candidate Trump does not tend to use terms such as “liberty” or “freedom” or “choice,” preferring instead to talk of power and greatness and getting things done. Should we be surprised that he sees the government as a massive demolition ball? This is a man, recall, who once sought to wipe out five companies in Connecticut because he thought he could do better with their land; a man who embarked on a decade-long attempt to kick an elderly widow out of her Atlantic City home because he wanted to construct a new parking lot for his hotel; a man whose relentless pursuit of an immigrant’s hard-earned property led that immigrant to wonder aloud whether he’d have had more of a chance of keeping his stuff in Russia. Were a contemporary set of revolutionaries to be inspired by the Founders and draw up a list of “abuses and usurpations,” the page marked “takings” would presumably be illustrated with a photograph of Donald Trump’s face.

It is difficult to overstate just how dramatically Trump’s approach toward private property breaks with the views that the Founders held — views that conservatives typically claim to endorse. Since the Supreme Court took it upon itself to rewrite the Fifth Amendment, our debate has largely revolved around whether the government should be permitted to take private property in order to facilitate private development. In the 18th century, this was not even considered, so keenly respected was the distinction between public and private. In his “Summary View of the Rights of British America,” Thomas Jefferson went so far as to suggest that “our Saxon ancestors held their lands, as they did their personal property, in absolute dominion.” Americans, Jefferson contended, should expect to do the same — even under a republican rather than a monarchical regime. If they did not, he warned gravely, they could not expect to be the masters of their own destiny, for if the state were able to insist upon their eviction, they would be living under nothing more than a reordered feudalism.

Jefferson’s principle — known historically as “allodial ownership” — was eccentric even for the time, and did not make it into the final draft of the Bill of Rights. But, at the insistence of the more moderate James Madison, protections were included. It is for this reason that the Fifth Amendment’s “takings” clause is restricted to “public use” (as opposed to the vaguer “public interest” or “public benefit”), and that “just compensation” is to be given to those who are affected by it. In an essay titled simply “Property,” Madison explained the thinking behind these measures. “Where an excess of power prevails,” he proposed, “property of no sort is duly respected.” And then? “No man is safe in his opinions, his person, his faculties, or his possessions.”

Despite the best attempts of the courts, Madison’s calculation lives on in the American spirit. Atypically for such a controversial decision, Kelo was met with a genuinely bipartisan horror. One can get a sense of just how broad the outrage was by looking through the list of states that took measures to limit the government’s latitude in this area. As of today, 44 states have acted to mitigate the ruling, 22 of which have essentially reversed the decision as it applies to the authorities within their borders.

Given the unusually broad-based nature of this resistance, it seems feasible to marshal support for a constitutional amendment that either overturns Kelo wholesale or goes some way toward limiting the meaning of “public use.” Typically, campaigns for constitutional amendments are quixotic. But in this instance, there is something for everybody. For progressives, such an amendment would represent a blow against large profit-seeking corporations and a victory for the powerless and the weak; for independents, it would guarantee a reduction in the cronyism that helps well-established politicians bolster their reelection chances at the public expense; and for conservatives — who wax lyrical about personal liberty and the Founders’ Constitution — it would be a momentous blow for individual rights and against the central planners, the soulless rent-seekers, and the would-be tyrants who regard dewy-eyed talk of freedom as but another impediment on their thorny road to empire.

There’s just one problem standing in the way: That would-be tyrant is leading in the polls . . .

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