June 23, 2015

The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain

by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

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.

Forty-five states passing new laws intended to limit the use of eminent domain. This is more state legislation than has ever been adopted in reaction to any other Supreme Court decision in all of American history. But many of the new laws impose few or no genuine constraints on takings. For example, many of them ban “economic development” takings that transfer property to private parties, but allow similar condemnations if the land in question is  “blighted.” And they define “blight” so broadly that almost any area can be declared blighted, and condemned. The Kelo backlash led to major progress in many states, but not nearly as much as it may have seemed.

Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. Before Kelo, most judges, legal scholars, and other experts took it for granted that the debate over public use had been definitively settled in favor of nearly unconstrained government power. It is difficult to make that claim with a straight face today.

Kelo and the reaction against it are far from the end of the debate over public use and eminent domain. But the decision may well go down in history as the beginning of the end of the era when most simply assumed that the Constitution allows the government to condemn Americans’ property for almost any reason it wants.

*For more on Kelo and Professor Somin’s book, see interviews conducted by Yale Law School Professor Jack Balkin for Balkinization here and here.