Adelberg: Our Domain

Eminent domain should be banned before abuse skyrockets.

by Steven Adelberg | 4/3/18 1:02am

 Homeownership is an essential pillar of the American Dream. Epitomizing security, stability and success, the American home is a safe haven and anchor for many in a volatile world. It certainly was for Dr. Eloisa Tamez, a Lipan Apache who treasured her 250-year-old ancestral home near the Texas-Mexican border. In 2008, the Department of Homeland Security decided that the land was in the way of border wall construction and initiated a messy seven-year legal process against Tamez to expropriate her ancestral land. She fought in the courts, but alas, Homeland Security successfully nationalized her property in 2013. In 2011, Texas farm manager Julia Crawford suffered the same ordeal at the hands of TransCanada, Inc. After she rejected several offers from the oil company, as her family had done for generations, the multi-national corporation took her to court. She crowdfunded her legal defense fund, raising thousands of dollars in a wave of popular support. Regardless, the courts seized the ranch and handed it to TransCanada in service of their Keystone XL Pipeline. This is not justice — this is theft. This ruinous practice of legalized theft is as invasive as it is on the rise. This is eminent domain.

Eminent domain is an archaic institution that has no place in a modern society based on property rights. Derived from dominium eminens — Latin for ‘supreme lordship’ — the idea was first promoted in 1625 by Dutch jurist Hugo Grotius to justify the power of the feudal state to seize the property of subjects for the public interest. Eminent domain spread far and wide as a seemingly natural extension of the supreme lordship of the feudal state; lords held dominion over whether and how their lands could be inherited, gifted, bought or sold. Fast-forward a few hundred years — feudalism is gone, but eminent domain is not. Democracy and capitalism have swept the globe, bringing the blessings of liberty and wealth to billions by trusting the original ownership of property and political authority with the people rather than the state. Eminent domain subverts this basic trust, dangerously and fallaciously asserting that the ultimate owner of property in a globalized economy can somehow be the nation-state. This erosion of the property rights that are foundational to our globalized system is bad economics, worse social contract theory and a fundamental failure to recognize that society has moved from feudalist stagnation to market-driven growth.

This basic contradiction between eminent domain and modern society will only become more glaring if the Trump agenda of infrastructure and border walls is implemented. In Texas alone, nearly 5,000 private properties lie along the path of the proposed border wall. Some experts estimate that only 20 percent of landowners would accept the terms and compensation put forth by the government. These parcels of property are not blank rectangles on a map: these are homes, family farms –– the building blocks of Texan communities. These potential future abuses of eminent domain stem from a $21 billion border project — just imagine the flood of abuses that would spring from a $1.5 trillion infrastructure package with private-sector buy-in. As a developer, Trump repeatedly attempted to use eminent domain against homeowners to further his business interests. After the controversial 2005 Supreme Court case Kelo v. City of New London expanded eminent domain to the promotion of private development, Trump stood with the Court and supported eminent domain as a force for good. President Trump already paved the way for more eminent domain by greenlighting the Keystone XL Pipeline — what is to stop him from using eminent domain to help other big corporations turn stolen American homes into more lucrative company projects?

Congress is. There is the potential for a broad, latent, bipartisan coalition in Congress aligned against eminent domain. This conjectural coalition is composed of anti-Trump Democrats who want to block Trump’s proposed border wall, “Middle America” Congressmen who must answer to their land-owning constituents, Freedom Caucus Republicans who champion property rights and progressives like Rep. Maxine Waters (D-CA) who represent the poor and marginalized Americans that eminent domain hurts most. This coalition has already been mobilized once in 2012 to overturn the Kelo decision via a bill that passed the House. The alliance of corporate and bureaucratic interests is strong in the courts and the executive branch. Voters can demand that their representatives restore the individual liberties and democratic norms they are sworn to defend. The people can push them into action once again to pass a sweeping ban of eminent domain, a prohibition against eminent domain for border wall construction or an amendment to Trump’s coming infrastructure package preventing any private project from using eminent domain. It is only a matter of time before the Trump administration creates thousands more Dr. Tamezes or countless more Julia Crawfords. The time for justice is now.