Ellis Washington
Trump, Jeb and eminent domain
By Ellis Washington
February 11, 2016

"... [N]or shall private property be taken for public use, without just compensation."

Fifth Amendment, Takings Clause (1791)

"Eminent domain is a very important thing. Jeb Bush doesn't understand what it means. And if you look into the Bush family – I found this out five minutes ago. They used eminent domain for the stadium in Texas, where they own, I guess, a piece of the Texas Rangers."

~ Donald J. Trump, ABC interview

Trump Jr. on Eminent Domain

For the almost 30 years since President Ronald Reagan has been out of office, it is indeed a breath of fresh air to have a real conservative statesman and constitutionalist nationalist like Donald Trump to so aggressively with a nationalist and constitutionalist zeal "protect and defend the U.S. Constitution against all enemies foreign and domestic."

For example, Breitbart News Daily hosted by Stephen K. Bannon last Monday interviewed Republican presidential leader Donald Trump's son Donald Trump Jr., and attacked former Florida Gov. Jeb Bush for criticizing his father on the question of eminent domain last Saturday during GOP debate.

Trump Jr. acquitted his father expertly on the historical and legal necessity of eminent domain and informed Bannon that there are "times that it has to be used." Giving a debate retort to Jeb Bush Trump, Sr. many times in the past has cited historical examples of eminent domain – to build hospitals, roads, bridges and the Keystone pipeline would require the use of eminent domain. While Jeb, like a typical Socialist-Progressive apparatchik, is trying to denigrate capitalism and free enterprise by playing politics with the necessity of eminent domain, Trump presents a serious historical and legal critique of eminent domain in America. Trump's right: Jeb doesn't get it.

"Jeb Bush going all, 'It's so terrible' – Jeb Bush and his family, when they were part owners of the Texas Rangers" used eminent domain to build the stadium, Trump alleged. Trump, Sr. in an ABC interview with George Stephanopoulos went even further on the Jeb Bush hypocrisy – "Eminent domain is a very important thing. Jeb Bush doesn't understand what it means. And if you look into the Bush family – I found this out five minutes ago. They used eminent domain for the stadium in Texas, where they own, I guess, a piece of the Texas Rangers."

"How can he [Jeb Bush] accuse me of using eminent domain when his own family used it?" Trump asked TV host Wolf Blitzer in a CNN interview who conceded the argument to Trump, responding, "a fair point."

Trump the son said, "It's always going to be limited government with him," discussing the existential battles his father has had with establishment Republicans. It is Trump who is the authentic conservative following the storied traditions of small government of Reagan conservativism. "You can't have a business that's successful if it's bloated with bureaucracy," he further stated, saying his father's paradigm is not a political model like his opponents, but a business model he used to build Trump Enterprises into a globalist enterprise – one of the most storied corporations in American history. "That's how he's going to run the country."

Part of Trump's campaign promise to "Make America Great Again" is to reform Leviathan government by actually and quickly getting rid of waste, fraud and abuse. Trump said his father would get rid of the fraud and waste that continues to grow, "That's the way he runs a business." Trump's government reform and Nationalist agenda brings real fear and loathing to the Socialist-Progressive Establishment class and their legions of lobbyists and billionaire powerbrokers. He said Wall Street and the financial elite are rejecting his father's presidential campaign because they know they can't "control him" and want to be puppet masters.

"They all want to be king makers...they know they're not going to own him," he stated. He affirmed that he and his siblings were a bunch of idle trust fund brats who were handed everything on a silver platter and didn't know the value of a dollar. Trump affirmed that his father made them all work very hard so that they would respect the value of money and "don't take anything for granted." "He made us work when we were young," he added. "He made us understand the value of a dollar."

Trump and the Seven Dwarfs at the GOP Debate in New Hampshire

What is Eminent domain?

Eminent domain is the constitutional authority of the government to take private property for public use. The Fifth Amendment under federal law and the Fourteenth Amendment under state law provides that the government may only employ this power if they give 'just compensation' to the property owners.

The doctrine of eminent domain affords governments the constitutional authority to take private real or personal property and has legal and historical precedence before the United States became an official country, before even the Founding Fathers, as a fundamental doctrine of sovereignty under the English Common Law and Natural Law. This power founder under the U.S. Constitution in Article II powers of Congress and may not be exercised unless the legislature has sanctioned its use by statute that specify who may use it and for what purposes.

In order for eminent domain to be legally binding Congress must first take private property by passing an Act conveying title to the government. The property owner may then pursue 'just compensation' or market value for their property by suing in the government entity in U.S. Court of Federal Claims. Congress may also delegate eminent domain power to private entities like public utilities, roads, bridges, expressways, or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. The parameters of the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, and reads, "... nor shall private property be taken for public use, without just compensation." The Fifth Amendment and the Fourteenth Amendment did not create the national governments or state's right to use the eminent domain power, it simply limited it to public use.

Kelo v. City of New London: Eminent domain now for 'private use'

In 2008 I wrote an essay on a landmark eminent domain case Kelo v. New London 545 U.S. 469 (2005), where the Supreme Court without stare decisis (judicial precedent) expanded the eminent domain power beyond public use to now include private use. The Court further held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment. In that essay I wrote the following:
    I cited the case of Kelo v. New London (2005) where the U.S. Supreme Court in a bitterly divided 5-4 opinion infamously held that the U.S. Constitution allows the taking of private property for private economic development. The Kelo case is a blatant violation of citizen property rights, also an obvious misinterpretation of the Takings Clause of the Fifth Amendment, which mandates, "nor shall private property be taken for public use, without just compensation."

    How could this liberal majority on the Supreme Court allow the city officials of New London, Conn., eminent domain rights over private-property landowners? Answer: So the Court could give the spoils to the private pharmaceutical giant Pfizer Corporation, enabling it to expand. Justice O'Connor, writing the dissenting opinion, rightly called it "Robin Hood in reverse."
The Kelo decision is yet again another example of the arrogant SCOTUS jurists legislating from the bench and judicial activism of the lowest kind. How can the Court make up law out of whole cloth to extend eminent domain rights historically and constitutionally limited for public use for hundreds of years, to now expand them by judicial fiat, by legislating from the bench to include government taking of private property exclusively for private, corporate use? The Kelo decision has rendered hundreds of years of eminent domain law and private property law to essentially become a deadletter.

Hobbes' revenge

Trumps' brilliant exposition of eminent domain reminds me of an essay I had written a few years ago about Thomas Hobbes (1588-1679), the radical atheist philosopher and an intellectual leader of the Enlightenment whose controversial ideas on political philosophy and the nature of government in relation to Man and the State were put forth in his magnum opus, De Cive (On the Citizen) (1642, 1647), Leviathan (1651). One is the theories presented in Hobbes' work was his tragic but accurate characterization of human nature down through the ages – Bellum omnium contra omnes (war of all against all). In Leviathan itself, Hobbes speaks of 'warre of every one against every one,' of 'a war [...] of every man against every man' and of 'a perpetuall warre of every man against his neighbour'

In chapter XIII of Leviathan, Hobbes explains the concept with these words:
    Hereby it is manifest that during the time men live without a common Power to keep them all in awe, they are in that condition which is called War; and such a war as is of every man against every man. [...] In such condition there is no place for Industry, because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continual Fear, and danger of violent death; And the life of man solitary, poor, nasty, brutish, and short.
Like subsequent philosophers, Rousseau, Marx, Darwin, Nietzsche, Weber, Freud writing in the 1700s – early 1900s, Hobbes worldview was regressive, atheistic, and primitive. His political philosophy places people in a pre-social condition – before the advent of civilization, and theorizes the results of this existential condition based on what he knew about human nature. Hobbes speculated that the consequence is that people in a pre-Christian, barbaric state of nature would choose to enter a social contract, sacrificing God-ordained Natural Law, Natural Rights or liberties for the utopian attributes of Universal Peace. Hobbes' sovereign thus is a theory or a test for the substitution of the omnipotent State in place of God, the Bible and morality, achieving its authority as "sovereign" to secure social order, and for comparing various forms of states on that foundation.

Hobbes make a distinction between war and battle: war does not only consist of actual battle; it points to the situation in which one knows there is a 'Will to contend by Battle.' It is under this distinction that Hobbes coined his thesis of Perpetual War later copied by Leon Trotsky (1879-1940) and the Communists in the twentieth century.

Hobbes predicted this perpetual war of all against all including the present existential war by Socialist-Progressives against the rule of law. This treason of course strikes at the heart of one of foundations of the American Republic – individual property rights. So cherished and sacred was this one idea that America's founders fought and defeated the greatest superpower power of the 18th (and 19th) century, Great Britain. Jefferson's original Declaration of Independence was to protect "Life, Liberty and Property"

Looking at the expansion/deconstruction of eminent domain policies sanctioned by the Supreme Court in the 2005 Kelo case, we can now see their deconstruction of eminent domain in other areas of the law. For example, residences located on the coastlines in Florida, California live in fear of hedonist-seeking trespassers invading homeowners' property to enjoy the tropical beaches in Florida and California coastline now have a constitutional right to trespass on private pathways leading to these private beaches for public use.

In my 2008 essay, Fleecing Florida's landowners, I mentioned a post-Kelo case – a tragic case in Florida sent to me by one of my readership of how the Kelo decision decimated eminent domain by depressing property values up and down the coveted Florida coastline. Donald Trump's constitutional narrative of eminent domain seeks to overturn the anti-capitalist Kelo decision and bring the Takings Clause back in line with the original intent of the constitutional Framers.

In the essay on the court's destruction of private property in Florida through eminent domain, I wrote of the essential societal conditions for Socialism and Leviathan government to destroy our God-given Natural Rights founded under Natural Law:
    Liberalism only prospers where there is angst, societal upheaval, cultural chaos, crime, apostasy, disorder, jealously, corruption – a zero-sum gain – the idea that all resources are finite, therefore if one group of people appears to be doing well, liberalism teaches another group that their success is at your expense, and you've got to get even.

    This in a nutshell is Hobbes (and later Rousseau's) state of nature theory. What you see in the Connecticut and Florida cases above is modern-day liberals, socialists, activist judges, the U.N., political hacks (on both sides of the aisle) and radical special interest groups systematically applying the principles of Hobbes' "Leviathan" to law, politics, economics, medicine, the environment, public policy, education, culture, society – Good simply means getting whatever you want, and evil is anything that might stand in your way of getting it. My desires equal my rights.

    Show me a monopoly (radical eminent domain, trespassers' rights) and I'll show you a tyranny (Florida's beachfront property belongs to everybody).
No America without Private Property Rights

"Bush accuses Trump of abusing eminent domain in his attempt in the 1990s to expand his Atlantic City casino parking lot. On this, Bush is almost definitely correct: most legal scholars," according to a recent article in Time Magazine, "including the New Jersey superior court judge who eventually ruled on the case, argue that a private casino parking lot doesn't even remotely fall under the category of 'public use.'"

That was the old dominion under Natural Law and Natural Rights which the Socialist-Progressive Revolution has destroyed in part adopting Hobbes' Leviathan and his perpetual war he called – Bellum omnium contra omnes (war of all against all). This Perpetual War in America is demonstrative in the U.S. Supreme Court's bitterly divided 5-4 opinion allowing the taking of private property for private economic development. This is unheard of prior to the Kelo decision Thus the Socialist-Progressives on the Supreme Court has turned the Constitution into a suicide pact and have killed the notion of private property through eminent domain.

Who will return America's eminent domain policy to the public use domain of the constitutional Framers? Only Donald J. Trump has the vision and the courage to achieve this result.

Trump is truly an American Prometheus for his singular defense of America's borders, language and culture. His courageous defense of eminent domain power codified in the Fifth and Fourteenth Amendments against the hypocritical demagoguery by Jeb Bush who in the last Republican debate in New Hampshire tried to imply that Trump stole the home of a New Jersey woman so that Trump could expand a parking lot for his Trump casino. Here's an excerpt from the GOP debate in New Hampshire.
    BUSH: What Donald Trump did was to use eminent domain to try to take the property of an elderly woman.

    TRUMP: Yes, and he wants to be a tough guy and it doesn't work very well with –

    BUSH: How tough is it to take property from an elderly woman?

    TRUMP: Let me talk. Quiet...
Lastly and perhaps most importantly, the cowardice of silence from the Seven Dwarfs of his Republican and two Democrat rivals on this critical issue of private property balanced with eminent domain as a foundation of America's Republic only further brings into dazzling relief the transcendent leadership and bold constitutional vision of Donald Trump to become the 45th President of the United States of America.

Indeed, the more I watch and listen to this statesman the more I am convinced that once he becomes President that Trump "will protect U.S. against all enemies, foreign and domestic."

Book Notice

Please purchase my latest opus dedicated to that Conservative Colossus, Supreme Court Justice Clarence Thomas. Here are the latest two new volumes from my ongoing historical series – THE PROGRESSIVE REVOLUTION: History of Liberal Fascism through the Ages (University Press of America, 2015):
However, before the book is officially released to the public, I have to place 100 pre-publication orders (50 orders per each volume). I need your help to make this happen ASAP. Please place your order today for Volume 3 & Volume 4. Of course, if you can order all 100 copies today, the book will become official tomorrow.

Please circulate this flyer to all your email contacts & Facebook/Twitter followers who may be interested in purchasing this opus which will serve as a ready apologetic against the rampant Marxist-Progressive propaganda taught in America's public schools, colleges, universities, graduate schools, and law schools. Thanks in advance to all my friends, associates and colleagues for your invaluable support! Law and History Blog: www.EllisWashingtonReport.com

Invitation for manuscripts

I am starting a new a program on my blog dedicated to giving young conservatives (ages 14-35) a regular place to display and publish their ideas called Socrates Corner. If you know of any young person who wants to publish their ideas on any subject, have them send their essay manuscripts to my email at ewashington@wnd.com.

© Ellis Washington


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Ellis Washington

Ellis Washington is a former staff editor of the Michigan Law Review (1989) and law clerk at the Rutherford Institute (1992). Currently he is an adjunct professor of law at the National Paralegal College and the graduate school, National Jurisprudence University, where he teaches Constitutional Law, Legal Ethics, American History, Administrative Law, Criminal Procedure, Contracts, Real Property, and Advanced Legal Writing, among many other subjects... (more)


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