My Forthcoming Article on " Public Use, Exclusionary Zoning, and Democracy"
It is part of the Yale Journal on Regulation Symposium on the 20th Anniversary of Kelo v. City of New London.
The twentieth anniversary of Kelo v. City of New London is coming up on June 23. Kelo is the controversial Supreme Court decision which held that privately owned "economic development" was enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." The Yale Journal on Regulation has a symposium forthcoming on the anniversary. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is now available for free download on SSRN. Here is the abstract:
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.
Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.
Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."
Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.
The article builds in part on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver).