Antonin Scalia vs. Donald Trump

Why Scalia rejected Trump-style eminent domain abuse.

Antonin Scalia, the conservative legal giant who died on Saturday at age 79, will be remembered for his outspoken views on legal issues ranging from abortion to gun control. Scalia's fierce opposition to eminent domain abuse is also worth remembering.

In 2005 the U.S. Supreme Court heard oral arguments in Kelo v. City of New London. At issue was that Connecticut municipality's desire to bulldoze a working-class neighborhood and hand the razed land over to a private developer working in cahoots with the Pfizer corporation. The idea underlying the city's scheme was that if people were forced out of their homes, their vacant properties could be put to more profitable purposes, thereby swelling the city's tax coffers.

The problem with this approach is that it violates the original meaning of the Fifth Amendment to the U.S. Constitution, which says that the government may only take private property for a public use (and it must pay just compensation when it does). Taking property from one private party and handing it over to another private party, by contrast, is plainly inconsistent with all traditional notions of public use, a reality the Supreme Court itself acknowledged back in 1954, when it upheld an eminent domain "urban renewal" taking on the grounds that it served a "public purpose," a far more permissive, and therefore government friendly, concept than public use.

During the February 2005 oral argument in the Kelo case, the lawyer for New London urged the justices to give government officials the broadest leeway possible in eminent domain disputes.

But Justice Scalia was not feeling so generous. Under your theory, Scalia asked the lawyer, "you could take [private property] from A and give it to B if B is richer, and would pay higher municipal taxes, couldn't you?"

"Yes, Your Honor," the lawyer conceded.

"For example," interjected Justice Sandra Day O'Connor, "Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?"

"Yes, Your Honor, that would be okay," the lawyer conceded again. In other words, because private property can almost always be put to a more profitable purpose, the government can effectively take any private property it wants for any "development" scheme it happens to cook up. So much for the text of the Fifth Amendment.

In the end, of course, Scalia and O'Connor were outvoted. Liberal Justice John Paul Stevens, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, gave the government all the leeway it needed to kick people out of their homes and wipe their neighborhoods off the map. "The disposition of this case," Stevens announced, "turns on the question of whether the City's development plan serves a 'public purpose.' Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."

The Kelo case has been in the news again recently thanks to the presidential campaign of Republican Donald Trump. In Trump's oft-stated view, Kelo is a "wonderful" decision that should be respected and emulated. Trump is also known for trying to personally profit from Kelo-style land grab.

Trump's position is of course totally anathema to the position of Justice Scalia, who once went so far as to compare Kelo to Dred Scott. Perhaps when the next Republican presidential debate rolls around, one of the moderators will consider asking Trump why it is that he prefers the legal views of John Paul Stevens over those of Antonin Scalia on this matter.