Unless you have been out of it lately, you must know that recently, two of the leading Republican presidential candidates — Trump and Cruz — have been going at each other over, of all things, eminent domain. But it seems to us that the quarrel between those two gents is not exactly a quarrel. Why? Because they are talking about two different things.
Cruz argues that Trump in in favor of a type of crony capitalism whereby the government uses eminent domain to wrest property from unoffending private parties in order to turn it over to other, more favored, private parties, which is not only immoral but also contrary to the “public use” limitation on takings contained in the Fifth Amendment. He points to an attempt by Trump to obtain the Atlantic City home of a widow named Vera Coking for some extra parking at one of his hotels, to make limousine parking for heavy rollers at that hotel more convenient. Of course, Trump failed when the stalwart pro bono folks at the Institute for Justice represented Ms. Coking and got the court to disapprove the taking.
Trump responds that eminent domain is great, and that without it we wouldn’t be able to build roads, public buildings, defense installations, etc. True enough. But Trump fails to deal with Cruz’s specific charge that a lot of today’s takings are not for genuine public uses, but for private gain — of which urban redevelopment is a good example. This process takes properties from one class of private owners and turns them over, as it tried to do in the notorious Kelo v. New London case, to favored redevelopers for the latter’s gain on the theory that by a trickle down process the community will gain.
Thus, it seems to us that these two candidates are talking past each other, about two different things. Nobody we know of argues that eminent domain should be abolished — sometimes its use is a matter of public necessity. But taking land for whatever reason from citizen A in order to give it to citizen B for the latter’s profit, is an altogether different story. See Dean Starkman, Take and Give: Condemnation Is Used to Hand One Business Property of Another, Wall St. Jour., Dec.1, 1998, at p. A1.
Follow up. For the Washington Post take on this issue, see Katie Zazina, Jan.25, 2016, How an Obscure Legal Issue Has Found Its Way Into the GOP Race.