The Volokh Conspiracy
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Today is the tenth anniversary of Kelo v. City of New London, one of the most controversial property rights decisions in the history of the Supreme Court. To mark the occasion, I have been invited to put up a guest post at the American Constitution Society Blog based on my recently published book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Here is a brief excerpt from the 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…
In the book I argue that Kelo was a grave error…. [E]conomic 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….
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 ACS is the left-of-center counterpart to the Federalist Society. Recently, I also wrote an op-ed about Kelo and eminent domain for the generally right-of-center Wall Street Journal editorial page. This conjunction is not entirely accidental. As I explain in the ACS Blog post and in greater detail in the book, opposition to Kelo and economic development takings brings together people on the right and left who agree on few other issues.
Famed legal scholar Richard Epstein, probably the nation's leading academic expert on on takings, offers his own take on the anniversary of Kelo here.
UPDATE: I also commented on Kelo in an interview quoted in this article by Timothy Lee of the Vox website (which is also generally left of center).
UPDATE #2: Here is a link to a recent radio interview I did on Kelo and my book for the African-American Conservatives program on Blog Talk Radio.