Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.
In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).
These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations. Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.