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The 20th Anniversary of Kelo v. City of New London
On this anniversary, I have posted two new articles related to one of the Supreme Court's most controversial decisions.
Today is the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. Building on earlier decisions such as Berman v. Parker (1954), a closely divided 5-4 majority ruled that virtually any potential benefit to the public qualifies as a "public use." The development project for which the property was taken failed so miserably that, for many years, the condemned land was used only by feral cats.
In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and in other writings, I have argued that Kelo was wrongly decided from the standpoint of prominent versions of both originalism and living constitution theory. On the occasion of the twentieth anniversary, I would like to highlight two new articles I have written about this subject.
The first is an article at the Brennan Center State Court Report website, assessing the massive state reaction against Kelo. Many states enacted stronger protection for property rights, but it is not an fully adequate substitute for systematic nationwide enforcement of the Fifth Amendment Public Use Clause:
Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.
This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution….
Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history….
In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court's interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.
The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests….
It took the publicity surrounding Kelo to focus public attention on this dismaying reality. The resulting backlash — combined with forceful dissenting opinions by Justices Sandra Day O'Connor and Clarence Thomas — also helped lead many legal elites to rethink "public use," breaking the seeming consensus established by Berman. State court decisions rejecting Kelo as a guide to their state constitutions are an example of that trend…
But for all its successes, the political and judicial reaction against Kelo fell far short of ending the problem of abusive condemnations for transfer to private interests. As described in my book, about half of the new state laws provide little or no meaningful new protection for property owners against private "economic development" takings. They give the appearance of reform, but not the reality. In most cases, this sleight-of-hand was achieved by banning takings for "economic development" while at the same time still allowing condemnation of "blighted" property under a definition of "blight" so broad that virtually any property could be declared blighted…..
As a result, abusive takings continue in many states, ranging from a condemnation for purposes of building a pipeline that may never get built, to efforts to suppress construction of affordable housing, and even a plan to condemn a church to build pickleball courts. In much of the country, protection for property rights is much stronger than it was before Kelo. But state-by-state protections for constitutional rights are not a fully adequate substitute for systematic enforcement of the federal floor established by the Bill of Rights….
Some argue that leaving the issue to state and local governments promotes local diversity. But we can achieve even greater localism and diversity by letting each property owner determine for themselves how their land should be used. Protecting constitutional property rights is the ultimate localism.
As noted in the Brennan Center article, there is a real chance the Supreme Court might overturn Kelo, but earlier this year the justices passed up a case that would have been excellent opportunity to do just that:
Four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. But the Court has so far refused to take a case raising that issue. Earlier this year, the justices chose not to review Bowers v. Oneida County Industrial Development Agency, a case brought by the Institute for Justice, the same public interest group that had represented the property owners in Kelo. I and many other property rights advocates believed Bowers to be an ideal vehicle for this issue.
The second article is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is 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, and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver). It has already secured the much-coveted "highly recommended" rating on Prof. Larry Solum's Legal Theory Blog.
