By Conor Friedersdorf
In the late 1990s, one of the largest corporations in the world wanted to build an upscale business park with a luxury hotel on waterfront property in New London, Connecticut. Families owned homes on that same land. Many of them refused to sell. One elderly resident, Wilhelmina Dery, had lived in the same home her entire life and didn’t want to move someplace new in her 80s. Another, Susette Kelo, just wanted to keep living in her little pink house, where she flew an American flag.
But government officials with ties to the corporation didn’t care. They forced people from their property. They bulldozed their working class neighborhood, hoping that the corporate interests poised to build there would generate more tax revenue.
It was a moral outrage.
The folks forced from their homes filed a lawsuit, insisting that their rights had been violated. They granted that the Fifth Amendment to the Constitution allowed the use eminent domain for public uses—if a vital new highway could not be built without taking a parcel of land in its path, for example, the state could go forward with the project so long as the owner was justly compensated for the taking. But they argued that the Constitution does not permit the government to take land for private uses. The state cannot seize your house and give it Pfizer, or Coca-Cola, or McDonald’s, or a real-estate mogul intent on expanding one of his properties.
The case went all the way to the Supreme Court.
And in a 5-to-4 decision, the liberal justices, joined by moderate Anthony Kennedy, sided with the government officials, ruling that they could force Americans out of their homes and transfer ownership of the land to a private corporation.
The 2005 decision sparked a popular backlash. As the conservative Justice Sandra Day O’Connor observed in her dissenting opinion, “the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Another conservative justice, Clarence Thomas, observed that “though citizens are safe from the government in their homes, the homes themselves are not.”
That same year, the court’s decision was praised by a billionaire real-estate developer with a personal interest in eminent domain. (He once tried to have the government force a woman from her home against her will so he could build a limousine parking lot.) He told Fox News of the ruling, “I happen to agree with it 100 percent.”
His name: Donald Trump, the same man a faction of conservatives is trying to elect because they insist, against all evidence, that his judicial nominations are to be trusted.
This is folly.
“Donald Trump’s view of eminent domain is not just immoral and un-American,” John Nolte wrote at Breitbart.com, one of the most pro-Trump publications in America, “it exposes a very troubling mindset that contradicts the populist appeal that has helped him get as far as he has in the Republican primary. People need to ask themselves if they want a second president in a row who’s so eager to use the fascist power of government to crush the individual in furtherance of corporate interests.”
And eminent domain is just one of many reasons to reject the proposition that it makes sense to vote Trump because his Supreme Court nominations will protect the Constitution, or the conservative or libertarian agenda, or that they will thwart the left. A posture that amounts to “trust him, he’ll come through” is an absurd folly put forward by pundits who would not lend Trump money if they ran a bank. They see, in that case, that he would fleece his creditors as soon as he had an incentive to do so. Yet they fail to see that were Trump elected, he would have no incentive to advance an originalist legal philosophy and every incentive to do the opposite.
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