A constitutional amendment to overrule Kelo v. City of New London and protect property rights against abusive takings

|The Volokh Conspiracy |

National Review columnist and prominent political commentator Charles C.W. Cooke argues that a constitutional amendment to overturn the Supreme Court's widely despised 2005 ruling in Kelo v. City of New London might attract broad bipartisan support. Unlike most amendments proposed in recent years, its appeal would not be limited to just one side of the political spectrum.

Kelo House - Frontal view - same as cover of LPH

Susette Kelo's famous "little pink house," whose condemnation was upheld by the Supreme Court.

Kelo ruled that the Constitution allowed the government to take private property from one private owner and give it to another simply on the theory that the new owner might promote more "economic development." Such condemnations often inflict great harm on poor, minority, and politically weak property owners, and also routinely tend to destroy more economic value than they create. In the Kelo case itself, the condemned property remains empty to this day, used mainly by a colony of feral cats.

I. Why an anti-Kelo Amendment Effort Might Succeed.

As described much more fully in my recent book about the case, Kelo generated a massive political reaction that cut across partisan, ideological, racial, and other divides. This was a rare case where Rush Limbaugh, the NAACP, Jane Jacobs, the Becket Fund for Religious Liberty, Ralph Nader, and even socialist Bernie Sanders were all on the same side. Conservatives and libertarians opposed the ruling because it endangers private property rights, while many on the left did so because economic development takings often victimize the poor and racial minorities.

Polls showed that over 80 percent of the public opposed the decision, and this level of opposition to economic development takings persisted even in surveys taken several years later, which indicates that it was not solely the result of an immediate emotional reaction to the ruling.

This widespread, cross-ideological opposition suggests that a constitutional amendment reversing Kelo might have a real chance of getting the supermajority support needed to pass. If all those who opposed Kelo support the amendment, it would likely prevail.

In the aftermath of Kelo, 45 states passed eminent domain reform laws, but many of them only pretended to ban Kelo-like takings, without actually doing so. A constitutional amendment could potentially overcome this shortfall. Unlike conventional legislative reforms, it could not be revised into ineffectiveness by state legislatures. They would have to ratify or vote it down, as is.

Any amendment effort would still faced some daunting obstacles. In order to get off the ground, it would need strong organizational support and resources. And that support would have to be bipartisan and cross-ideological from early on. An amendment that is seen as an exclusively right-wing or left-wing effort is likely doomed to failure. The cross-ideological coalition behind the amendment would have to hold together through what will surely be a prolonged struggle. Securing the necessary two-thirds majorities in both houses of Congress, followed by ratification in thirty-eight state legislatures will not be either quick or easy.

In addition, the amendment would have to overcome opposition from some well-organized interest groups, such as some state and local planning officials, and politically influential business interests who benefit from economic development takings. The latter include developers such as Donald Trump, whose record of eminent domain abuse and recent comments on the subject have attracted new attention to the issue.

Even a well-organized amendment effort might well still fail. But a serious push that narrowly falls short of the mark might still help promote the cause of property rights by focusing new attention on the issue, and leading judges and legislators to rethink public use. In the 1970s and 1980s, the effort to pass the Equal Rights Amendment ultimately fell short. But historians and legal scholars argue that this near-miss helped stimulate other efforts to curb sex discrimination. The national ERA movement also inspired numerous states to add Equal Rights Amendments to their state constitutions. A federal anti-Kelo amendment might stimulate additional efforts to amend state constitutions along similar lines, building on the prior success of post-Kelo referendum initiatives in several states.

It is quite possible that the Supreme Court will eventually overrule Kelo without the need for any amendment. But the Court might be more willing to act if key swing justices see that there is a strong movement seeking to overturn Kelo through the amendment process. In the 1970s, the groundswell of support for the Equal Rights Amendment may have influenced the Court to use the Fourteenth Amendment to crack down on sex discrimination in a way it had never done before.

II. A Tentative Proposal.

As Cooke notes, I drafted a proposed amendment to overturn Kelo back in 2011, which I was working on my book. Cooke himself came up with a similar idea independently, and contacted me while doing research for his article.

I tentatively called my 2011 proposal the Property Rights Amendment. At that time, I did not pursue the idea, in part because I did not have the influence and resources needed to get it off the ground. But perhaps others will be able to accomplish what I could not.

Here is the wording I drafted for the amendment:

Section 1: Private property may not be taken by the United States or by any State except for a public use.

Section 2: For purposes of this amendment, a public use exists only if the condemned property is transferred to government ownership and control, if the general public has a legal right to access or utilize the property, or if the condemning authority proves by clear and convincing evidence that the use of eminent domain is necessary to eliminate a substantial threat to public health or safety.

Section 3: This amendment applies only to condemnations filed on or after the date of ratification.

Section 1 is mostly self-explanatory. It restates in clearer terms the Fifth Amendment's requirement that the government may only take property for a public use. This version forecloses the argument (advanced by a few legal scholars, but never accepted by the courts) that the Fifth Amendment should be read merely to require that takings for public use get compensation, while takings for private use are not restricted at all.

The purpose of Section 2 is to forbid economic development takings like the one that occurred in Kelo, without categorically banning blight takings. In my view, the latter should also be forbidden, and are contrary to the text and original meaning of the Public Use Clause of the Fifth Amendment. But I do not believe that an amendment banning blight takings could get the supermajority support necessary for ratification. However, Section 2 would limit blight condemnations to areas that are genuinely dilapidated and pose a threat to public health or safety, and would therefore invalidate various current state laws that define blight so broadly that almost any area can be declared blighted and condemned.

Section 3 prevents the amendment from having retroactive application. Stopping existing condemnation projects might cause costly disruption, and might also make it more difficult to get the amendment passed.

If the movement to adopt an anti-Kelo amendment gets off the ground, the above language might well be revised in various ways. It is intended to begin the discussion, not definitively resolve it. A successful amendment must contain language that would impose serious constraints on eminent domain, but also be broadly acceptable to key constituencies across the political spectrum. It could be that those ends are best accomplished by wording that differs from my draft. But I believe that the draft at least captures the broad outlines of what such an amendment would look like.

It is too early to say for sure whether a constitutional amendment is the right strategy for those who want to strengthen protection for property rights against eminent domain abuse. But it is an approach that at least deserves serious consideration. Hopefully, Cooke's column will be the beginning of a valuable discussion. In the best-case scenario, he might even go down in history as the originator of one of the few successful efforts to amend the Constitution.

UPDATE: Leading constitutional law scholar John McGinnis has written a thoughtful post supporting this amendment idea.