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The Kelo Debacle Turns 10

Marking today’s 10th anniversary of the Supreme Court’s notorious decision in Kelo v. City of New London.

Ten years ago today, the U.S. Supreme Court issued one of the most destructive and appalling decisions of the modern era. In Kelo v. City of New London, a 5-4 majority allowed a local government to bulldoze a working-class neighborhood so that private developers would have a blank slate on which to build a luxury hotel, a conference center, and various other upscale amenities. The city’s goal was to erase that existing community and replace it with a new commercial district that would (hopefully) fill the local coffers with more abundant tax dollars. According to the Supreme Court, this unsavory land grab qualified as a legitimate use of the city’s eminent domain powers because the city “has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community.”

Never mind the fact that the Fifth Amendment to the U.S. Constitution forbids the government from taking private property via eminent domain for anything less than a legitimate “public use.” Traditionally, the concept of public use has been understood to apply to things like roads, bridges, or tunnels—not to fancy hotels operated on a for-profit basis by private businesses. But that public-private distinction was lost in the eyes of the Court. “The disposition of this case,” declared the majority opinion of Justice John Paul Stevens, “turns on the question whether the City’s development plan serves a ‘public purpose.’ Without exception,” Stevens asserted, “our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”

According to Stevens, what really mattered was that city officials had a plan and that they firmly believed their plan was in the city’s best interests. The only task remaining for the Supreme Court, Stevens maintained, was to grant those government officials “broad latitude in determining what public needs justify the use of the takings power.” In other words, the city of New London was permitted to define—and to enlarge—the scope of its own eminent domain powers, unencumbered by any pesky interference from the courts.

Writing in dissent, Justice Sandra Day O’Connor observed that under the Court’s dangerous rationale, “the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

O’Connor was right to worry. In the aftermath of Kelo, New York officials took a page from New London and proceeded to tear down homes and businesses in order to make way for a professional basketball arena in Brooklyn, and then those same state officials snatched more homes and businesses in Harlem to provide extra campus space for Columbia University, an elite private institution that can surely afford to handle its own real estate deals on the open market.

To make matters worse, New York’s highest court followed the deferential Kelo standard and rubber-stamped the state’s misdeeds in both cases. “Any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context,” New York’s high court ruled in the Brooklyn arena case, “is a matter for the Legislature, not the courts.”

Unsurprisingly, Kelo has sparked outrage and disbelief across the political spectrum. Kelo is “the most un-American thing that can be done,” declared Democratic Rep. Maxine Waters of California, an outspoken liberal, a few days after the ruling was announced. Conservative talk radio host Rush Limbaugh, normally one of Waters’ ideological opponents, had a similar reaction. “Government can kick the little guy out of his or her homes and sell those [homes] to a big developer,” Limbaugh complained. “That’s not what the takings clause was about.... It’s just been bastardized.”

To be sure, the Supreme Court has issued plenty of controversial decisions in recent decades. But those controversies have tended to divide Americans along ideological or partisan lines. For example, conservatives tend to be the ones upset about Roe v. Wade, while liberals tend to be the ones upset about Citizens United. Kelo has the unique distinction of uniting all sorts of different people against the Court’s truly abysmal judgment.

Looking back over the past 10 years, it’s clear that Kelo was a disaster on virtually every level.

In the wake of the Court’s decision, the final holdouts in New London were given the boot and the bulldozers rolled in, leveling the neighborhood. But then nothing else happened. The redevelopment scheme fell apart and the project died. If you visit New London today, you’ll find that the razed neighborhood still stands empty, a depressing monument to the folly of “expert” government planning.

As for Justice John Paul Stevens, he remains unrepentant about his central role in the Kelo debacle. In fact, in a 2011 speech, Stevens lashed out at several of his critics (including me), arguing that Kelo remains perfectly justifiable because it “adhered to the doctrine of judicial restraint” and was rooted in “Justice Oliver Wendell Holmes’ broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation.”

But why should the Supreme Court adhere to Justice Holmes’ toxic interpretation? Why not just follow the actual text of the Constitution? After all, Holmes is the same justice who once wrote, “a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell.”

In other words, under Holmes’ “broad reading,” it is acceptable for the majority to run roughshod over the minority—and the judiciary has no business standing in the way. So much for protecting the rights of unpopular groups.

In short, Kelo was wrong the day it was decided 10 years ago today and it has only gotten more rancid with age. If any modern case deserves to be overruled by a future Court, Kelo is it.

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  • Fist of Etiquette||

    ...a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell.

    The dominant forces in New London were the city leaders and the developers. Certainly the Bill of Rights was not intended to protect the will of those powerful few hungry for other people's property over the individual property owner.

  • Illocust||

    Ah but if we didn't have eminent domain it would be so much harder to turn all the local big businesses into cronies.

  • thrakkorzog||

    On a 10 year anniversary, let's give it a 10 woodchipper salute.

  • Poppa Kilo||

    You, sir, are a bad, bad, man.

    Do you have a newsletter?

  • Azathoth!!||

    You tell 'em, Susan!

  • perlchpr||

    I only think we need nine...

  • gaoxiaen||

  • Rebel Scum||

    Always remember that you live in the land of the "free".

  • ||

    You know who else has only gotten more rancid with age

  • Florida Man||

    Not mummys.

  • Chumby||

    Limburger cheese?

  • PBR Streetgang||

    Tim Armstrong?

  • Suicidy||

    Hillary's kankles?

  • LynchPin1477||

    If you visit New London today, you’ll find that the razed neighborhood still stands empty, a depressing monument to the folly of “expert” government planning.

  • Enjoy Every Sandwich||

    what really mattered was that city officials had a plan

    You know who else had a plan?

  • BearOdinson||

    Those meddling kids, and their dumb dog!

  • DonW||

    I would have gotten away with it, too.

  • DonW||

    You totally would have gotten away with it, too.

  • DonW||

    You totally would have gotten away with it, too.

  • jmg09||

    Teddy Roosevelt?

    A man, a plan, a canal, Panama.

  • defenestrate||

    One of my favorite palindromes.

  • Gary T||

    Sarah Palindrome?

  • ||

    The Cylons?

  • Jumbie||

    Those fracking toasters didn't have any plan. I swallowed that lie for 3 seasons.

  • Chumby||

    The A Team?

  • SimonJester||

    I love it when one comes together.

  • SimonJester||

    Rico's Roughnecks?

  • gaoxiaen||

    George W. Bush?

  • Rt. Hon. Judge Woodrow Chipper||

    Baldrick?

  • Rt. Hon. Judge Woodrow Chipper||

    Dr. Strangelove?

  • Suicidy||

    Doctor Sivana?

  • JRS1001||

    Stalin - 5 year plans

  • C. S. P. Schofield||

    See, the problem is that if the courts start "interpreting" the Constitution and the law in terms of plain English meaning and syntax, it will be necessary to dismantle 90% of the Federal government and a slightly smaller proportion of the state and local governments, and those government flunkies that would be thrown out of their sinecures are the people the Judges know and sympathize with.

    The citizens? We can take our chances.

  • dpbisme||

    I bet lots of Democrats got payoffs for the New London deal. They have excelled at that for nearly 100 years.... I mean really $500,000 for a speach for Bill and $250,000 for a speach from Hillary? Tell me these are not payoffs.... probably for future influance and to keep their mouths shut about the Democrats Parties Misdeeds...

  • BearOdinson||

    I went back and read the majority opinion, O'Connor's dissent and Thomas' dissent. The majority (and specifically Stevens) didn't even try to justify the takings from a Constitutional basis. It amounted to something like "the Court has decided that legislatures can do anything they want with respect to economic regulation and so we just need to butt out." Unfortunately even O'Connor didn't go nearly far enough. Thomas' dissent was the only opinion that actually went back to the founding and basis document for the Constitution and defined what is actually meant by "public use". Frankly, even today Thomas is the only sitting Justice who truly respects the original meaning and intent of the US Constitution.

  • Don'tTreadOnMeChipper||

    Some day in the distant future a group of archeologists will be digging near present day 700 Pennsylvania Avenue and discover an ancient parchment. Reading their discovery they will exclaim,"Wow, those primitive peoples had some strange beliefs!".

  • Suicidy||

    Future archeologists? Right. It will be ultra statist idiocracy by then.

  • Chumby||

    Wasn't there an effort to use emminent domain to take land that Stevens owned and build a "liberty park," which would provide a greater public good effort due to the increase in rax revenue?

  • DEG||

    It was Souter's land. It failed because NH law prohibits this type of taking, which the article gets wrong.

    http://www.nbcnews.com/id/8406.....rm-target/

  • DEG||

    Hmm... that page expired. Try this one instead:

    http://www.washingtonpost.com/.....01125.html

  • gorilla15||

    I remember I was taking a Constitutional law summer class as an undergrad when this passed and was shocked at how bad it was. I asked the doofus professor about it and he said some mumbo jumbo about how it is no big deal and was a good decision.

    I honestly think this was the worst and most obviously wrong decision the court has ever made.

    I think as pay-back, some rich developer tried to expropriate John Paul Stevens' vacation home as a way of showing him how it feels to have your shit just taken by the government and given to another person. I wonder what ever happened with that.

  • ||

    Wickard v. Filburn?

    Kind of a toss up.

  • Rt. Hon. Judge Woodrow Chipper||

    Obama was your professor?

  • gaoxiaen||

    Not a big deal means not happening to me.

  • perlchpr||

    “The disposition of this case,” declared the majority opinion of Justice John Paul Stevens, “turns on the question whether the City’s development plan serves a ‘public purpose.’ Without exception,” Stevens asserted, “our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”

    "In other words", he continued, "Fuck You, That's Why."

  • DonW||

    I always preferred "because fuck you" since the listener thinks for a second you might not be insulting them.

  • BearOdinson||

    The thing about Stevens is that, as a "jurist", he didn't even try to go back to the Constitution. Breyer would occasionally give lip service (like a normal modern lefty). And Ginsburg is really just a fucking moron (I am sorry, but I don't think she could put two logical thoughts together). Stevens is the one who wrote in his book that the Second Amendment doesn't mean what everyone thinks it means, because FYTW. Oh, and we should repeal the Second Amendment because no one should have guns. Brilliant logician.

  • Bob Straub||

    Columbia University is apparently the largest private landowner in NYC. Aside from government, the Catholic Church is either first overall or a close second to Columbia. In 1985, Columbia sold the land it owned under Rockefeller Center for $400 million ($884 million in 2015 dollars). Without any assistance at all, it should be able to outbid almost anybody for land on which to expand

  • Robert||

    And you thought 'Who Owns New York?" was just the school song.

  • fresnodan||

    fresno dan
    "...has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community."

    When I look back on this country, and where it all seemed to go belly up, it seems to me when the idea started that the government could make us all richer, as if politicians really know how to do that.
    People make themselves richer (especially politicians, but they have the advantage of other people's money). And when someone says they're gonna make you better off, hang on to your wallet.

    The people in this community didn't get richer, and demonstrably got poorer - and government, with its "sovereign" immunity - not one of the frauds, incompetents, or nincompoops paid any legal penalty for their damage to the "community" that they so piously proclaimed their interest in.

    Justice John Paul Stevens:
    “our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”

    ?????
    Its as if the man doesn't know that the very point of a constitution is to LIMIT legislatures.
    But the question must be raised, who appointed him? Oh yeah, Gerald Ford...
    So....republicans believe in small, limited government, but they just got this guy wrong???

  • Brochettaward||

    “Any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context,” New York’s high court ruled in the Brooklyn arena case, “is a matter for the Legislature, not the courts.”

    How is this anything more than the courts advocating their responsibility to protect private property rights? And isn't that one of the issues over the last century - the courts have bent over backwards, largely, to ignore economic rights of any kind?

    It doesn't even make sense as eminent domain is a constitutional matter clearly defined. It is entirely in the purview of the courts. It's the reason they exist.

  • Rt. Hon. Judge Woodrow Chipper||

    Advocating? or Abdicating?

  • Gary T||

    I wrote about the Kelo case in 2009, in my article:

    "Eminent Domain, A Truly Tripartisan Issue"
    http://tinyurl.com/or6vyzj

  • CSou||

    Looking to the Constitution for help is not a good solution. The Constitution does not use the word 'unalienable' anywhere, let alone to describe the Rights it protects. Effectively it only promises to support some Rights via Ammendments and new Ammendments can cancel old Ammendments, meaning Gov can choose to not support any Right(s) or even outlaw them. There is no higher power, no "endowed by their Creator with certain unalienable Rights" to appeal to in the Constitution, Gov decides what to protect and can stop. When it is gone, those who try to protect some or all of their unalienable Rights may be criminals. Given the current course Gov seems to be on, it may only a matter of time before they try to change the ratification process to make that easier. Who knows, maybe another executive order?

  • Chipper Gore||

    Even my super femminist lady con law professor did not want to defend Kelo. She hemmed and hawed a bit before admitting it probably sucks. The final was 2 essays, i wrote one conservative and one liberal in bent just to screw around. This technocrat enabling BS law should find its way into a.... You know what.

  • Chipper Gore||

    I changed my mind. Kelo good because Top Men.

  • Chili Dogg||

    So liberals were opposed to the Kelo ruling? Huh? I seem to remember it was the liberals on the court who ruled against the property owner and for the government/developer combo. When it came down to the government and "the little guy" that liberals claim to care about, we know who wins that one all day. Yes, I know I'm not telling you anything you don't already know. I'm just venting, assuming it is still legal to vent.

  • ||

    Having spineless wimps like Stevens running the nation is stupidity beyond belief.

  • AWLinNC||

    The difficult thing for conservatives to address in Kelo is that it is, judicially, a conservative decision. Stevens is right in this instance. The key point in the decision is not that there was a public purpose, but that New London followed the due process instituted by state law. As Stevens said in his opinion, Kelo and others can appeal to the legislature and work to elect new legislators and lobby to change the law. What conservatives want is not conservatism, but conservative activism that remakes the world according to a conservative vision. My sympathy is with Kelo, but this case is part of a large movement to make any governmental action that restricts private land uses a "taking" that must be compensated. This would put an end to zoning ordinances, environmental regulations, and a host of other legitimate government regulations that benefit the community over private desires. The five justices understood the nature of this Pandora's box, and refused to open it - and they were right.

  • dot1946||

    SCOTUS got it right with the raisin "takings" case. Now, it's time to take a new look at eminent domain. With Kelo, anybody's property can be taken for practically any reason if the govt thinks it serves a "public purpose." Following Kelo, most states modified their own laws to prevent expanding eminent domain in the way the Supremes did. Kelo did do one good thing: It raised the consciousness of many people of all political persuasions regarding the illegitimate expansion of power of govt.

  • SovereignMary||

    An appalling and horrible example of the U.S. Supreme Court committing Judicial Activism .. acting Superior to and usurping the U.S. Constitution.

  • Duelles||

    So Holmes and Stevens bring to light the Ben Franklin story. . . " a Republic, if you can keep it." These guys and their ilk are determined to kill the Republic? Treason? Hmm!

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