Turns out, Jeb! likes eminent domain just fine — for the purposes he approves

Turns out, Jeb! likes eminent domain just fine — for the purposes he approves

A little clarity is in order for the dispute between Jeb! and The Donald over the use of eminent domain authority.

A lot of Americans are hostile to eminent domain, and there are good reasons for that.  Trump’s own connection with it is typical of what people hate: seeing cities and counties exercise eminent domain to directly benefit commercial enterprises that will pay big taxes.

You can say “roads and bridges” all you want, but what people remember with disgust is shopping malls, upscale condo developments, racetracks, and – yes – casino parking lots.

Local officials can always defend such targeted use of eminent domain to pry property away from little old ladies and poor people.  Hey, they’re going to bring in much-needed revenues, instead of leaving prime land to yield nothing more than a few thousand a year in property taxes.  It’s always for – wait for it – the children.  For the schools.

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But people don’t like it.  So Jeb!’s attack on The Donald over eminent domain is a slam-dunk, right?

Well, that’s an interesting question.  At RedState, “streiff” clearly thought it was a slam-dunk after the New Hampshire GOP debate.  I won’t reproduce here the exchange between Jeb! and Trump; streiff has it laid out for us, and you can revisit the whole thing at his post.

What I want to call out is how careful Jeb! is to distinguish between public and private purposes for using eminent domain.  If you’re listening for the sound of moral animosity to eminent domain, you can certainly hear that from Jeb! – if you want to.

But – **PAY ATTENTION HERE** – he keeps hedging, implying over and over again that if it’s for “public” use, it’s fine.

So Trump meets him head-on by insisting that eminent domain for the Keystone XL pipeline – something Jeb! is OK with – is a use for private enterprise.

And Trump is right about that.  Building the Keystone XL pipeline is a private commercial undertaking, intended for private commercial profit.

Sure, it affects the economic fortunes of more Americans than the typical, local use of eminent domain to build a casino or an amusement arcade.  But the principle is exactly the same.

Got that? OK, here’s the deal.  If you think that because it’s part of the “energy infrastructure,” an oil pipeline should be grouped with “public works” – roads, bridges – instead of with shopping malls and casinos, you’re a mid-20th-century “soft socialist.”  And once you’re one of those, the only thing that’s left to negotiate is the price of your complete sell-out, on individual freedom and private property.

Jeb! obviously is such a soft socialist.  He clarified that by where he came down on eminent domain and the oil pipeline.  Trump kept saying “private.”  Jeb! kept saying “public.”

But Jeb! also clarified his view of eminent domain in a locally-famous case in Florida, which was concluded when he was governor in favor of the state.  (I.e., Florida.  This was not a federal procedure; the state of Florida inaugurated it.)  There’s a summary of it here (another one, from 2006 – in the middle of the property owner’s fight – is here, and confirms the details).

The bottom line on the case of Jesse Hardy is that he was forced to sell out by an environmental declaration that affected his property.  He’s much like the ranchers who have been forced off their lands in the West, harassed and pressured by government agencies motivated by special-interest agendas.

And yes, eminent domain is what was used to push him off his land.  Jeb! was just fine with using eminent domain for that purpose.

Put your brain in gear and think about what is a “public” interest, and how easy it is to forget to define it.  Environmental extremists – people with a radical vision not shared by the public – have been exploiting the silence on what really constitutes a public interest for decades now.  There is no public interest served by pushing Jesse Hardy off his land, any more than there’s a public interest served by pushing the ranchers of the West off theirs.

But Jeb! is aligned with our current, unexamined, soft-socialist premises about what constitutes a public interest.  If you think The Donald’s viewpoint is bad, then logically, you have to question Jeb!’s as well.  He’s not actually standing up for your property rights.

The difference between them is important, however.  Trump is willing to be very explicit about where the interests actually lie in an eminent domain procedure.  Jeb! wants to posture sanctimoniously against takings for some commercial purposes, while calling others “public” use, and leaving the definition of public use as a big hand-wave, so vague that it encompasses all kinds of things you wouldn’t agree with.  That, incidentally, is the classic, trademark stance of the 20th century’s “old consensus.”

For myself, I can see a need for the eminent domain power in very limited circumstances.  But we should air out this extremely important issue in a constitutional convention, and ensure that it can never be used to take property in the manner preferred by self-styled “environmentalists.”  (And yes, I mean never.  There are other ways to implement environmental policies, if we think they’re important enough.  The inviolability of property ownership must trump the urgent, but often faddish, advocacy agendas of irresponsible third parties.)

Neither Jeb! nor Trump would agree with that.  Which is why I won’t be voting for either of them.  But Trump, once again, is helping us get extremely important issues out in the open and clarify them, in a way we haven’t managed to in a very long time.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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