In his Feb. 14 column about a recent dispute among Republican presidential candidates — notably Donald Trump and Jeb Bush — Richard Greene argued that the use of eminent domain for Trump projects in Atlantic City was bad and indefensible, but using eminent domain for Arlington’s ballpark by then-Mayor Greene, the city, the Bushes (specifically “W,” whose actions Jeb defended) and the Rangers was good and legally proper.
Greene may think so, but he is wrong.
Eminent domain is complex, involving constitutional and economic issues as well as issues of fact.
The Constitution never refers to “eminent domain.”
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That concept derives from “takings clause” of the Fifth Amendment. It states, “nor shall private property be taken for public use without just compensation.”
Greene initially claims that the Constitution allows the use of eminent domain to “acquire private property for public benefit,” and later claims that Arlington “did the right thing in the proper use of the authority to acquire private property for public purposes.”
But public benefit is one thing, public purpose another, and public use yet another.
Public use takings historically included the use of property for schools, parks, roads, hospitals and when the transfer involves a “common carrier.”
Projects that involve razing dilapidated housing, clearing slums and consequent reduction in crime and squalor qualify as public purposes, but usually under the guise of nuisance law, not the “takings” clause.
The Arlington ballpark project qualifies as neither: a major-league baseball stadium with expensive tickets is not a public use, and nothing suggests that the assets seized were distressed in any way.
At least Trump’s efforts in distressed Atlantic City might qualify as serving some public purpose.
So what’s left is the alleged “public benefit.” But what might that be?
Greene mentions publicity for Arlington associated with the Bushes (each time one of them runs for public office, eyes across the nation turn to Arlington), the benefit of hosting the World Series and having a “world-class facility.”
But none of these qualifies as a public benefit.
So what does? The “incalculable and ever-growing economic benefit of jobs, revenue from rents, sales tax revenue and more pay” for folks in Arlington.
First, these benefits might be “incalculable” because they are fictional.
Economic studies have repeatedly demonstrated the folly of investing in big-time sports venues for the purpose of economic benefit.
Seldom if ever do those benefits materialize.
Further, as Justice Sandra Day O’Connor argued in Kelo v. City of New London, to allow taking any time it is alleged that someone else could use one’s property in a way that is economically more productive would render all property insecure.
And as Justice Clarence Thomas pointed out in that case, it would mean that property owned by the least-advantaged is always at risk of being taken by some entity whose resources would allow them to employ it more productively.
Greene makes it seem as if, were Arlington denied eminent domain, the project would never have gone forward because the property owners “sought more money than their property was worth.”
But what is their property worth?
Classical economics would say: what it would take for them to sell (not the fiction of “fair market value”).
Obviously, what Arlington offered was insufficient to get the owners to sell.
Either the economic surplus was not sufficient to compensate the property owners, or Arlington was unwilling to pony up with “just compensation,” which concerns only how the (allegedly enormous) economic surplus from the project would be distributed.
Either way, this was corrupt corporate welfare through seizure — pure, plain and simple.
At least The Donald could claim, however disingenuously, to be helping poor Atlantic City.
Richard Galvin is the Betty S. Wright Professor in Applied Ethics at Texas Christian University.