Today is the fifth anniversary of Kelo v. City of New London, one of the most controversial decisions in Supreme Court history. In Kelo, a narrow 5-4 majority of the Court ruled that the condemnation of private property for transfer to other private individuals for purposes of promoting “economic development” was permitted by the Fifth Amendment, which allows government to condemn property only for a “public use.” Kelo was a flawed decision and it drew a massive political backlash. There are lesson to be learned from both.
I. The Shortcomings of Kelo.
In my view, Kelo was wrong both because it goes against the text and original meaning of the Constitution and because it embodies an unrealistic view of the political process. On the former point, this article by leading property rights historian Jim Ely does a good job of summarizing the relevant historical evidence. The Founders and early 18th and 19th century jurists disagreed among themselves about the exact meaning of “public use.” But there was widespread agreement that government lacked the power to condemn property owned by one private individuals and transfer it to another merely because the government claimed there might be some sort of public benefit.
Kelo was also mistaken because the majority justices wrongly assumed that the existence of a “plan” would minimize the likelihood that private interests would exploit the condemnation process to take from the politically weak. In reality, the political process makes it very easy for this to happen, as voters have great difficulty monitoring the quality of economic development takings. Moreover, the new owners of condemned property generally have no legal obligation to actually provide the economic benefits that supposedly justified the condemnation in the first place. This predictably results in condemnations that not treat property owners unjustly, but actually destroy more economic value than they create, as happened in the Kelo case itself. I develop these points in greater detail in this article.
More generally, it seems contradictory and self-defeating for courts to allow legislators to define “public use” as they see fit. The whole point of the Bill of Rights is to constrain government power. That objective is undercut if the scope of the rights to be protected is defined by the very government officials whose abuses are supposed to be constrained. It is a bit like appointing a committee of wolves to guard your chicken coop in a world where predation by wolves is the whole reason why you need guards in the first place. As Ely notes, “among all the guarantees of the Bill of Rights, only the public use limitation is singled out for heavy deference to legislatures.” Unfortunately, this is part of the Court’s more general policy of relegating constitutional property rights to second-class status.
II. The Post-Kelo Backlash.
Kelo generated a broader political backlash than any other Supreme Court decision in decades. As I explained in this article, over 80% of the public opposed the decision, and a record 43 states passed eminent domain reforms in the wake of Kelo. Many observers, including legal luminaries such as Richard Posner, argued that this backlash shows that judicial protection for property rights in this field is unneccessary.
Unfortunately, my work on post-Kelo reform also shows that the majority of the new laws provide little or no meaningful protection for property owners. In many cases, they ban Kelo-style takings for “economic development,” but allow the same types of condemnations to continue under the guise of combating “blight.” Blight, in turn, is defined so broadly that almost any area qualifies.
Several factors account for this result, including resistance by interest groups who benefit from unconstrained eminent domain power. In my view, a key problem is widespread voter ignorance that makes it difficult for most citizens to tell the difference between effective reforms and those are primarily for show. Given the overwhelming public opposition to economic development takings, I doubt that interest group lobbying could have prevented strong post-Kelo laws from being enacted if voters had been well-informed about the legislation in question.
The Institute for Justice, the libertarian public interest law firm that litigated Kelo, has a more optimistic take on the results of the backlash in its well-written report on the fifth anniversary of the case. Several of their points are valid. Thus, IJ points out that a number of state supreme courts have recently struck down Kelo-style takings under their state constitutions. This is true, though it’s hard to tell how much of this is the result of Kelo, and how much a continuation of a preexisting trend under which six state supreme courts ruled that way in the ten years before Kelo; with only two (including the Connecticut Supreme Court in Kelo itself) going the other way.
On the legislative reforms, there is perhaps less difference between my assessment and IJ’s than meets the eye. In this article (pp. 15-16), University of Illinois law professor Andrew Morriss has compared my evaluations of the state reforms with IJ’s and finds only three cases where there is a significant divergence (including one – Idaho – where I rated the reform law much more favorably than IJ did). I would perhaps add a couple more cases to this list that arose after Morriss’ paper was finished.
I also agree with IJ that a significant number of states (albeit, in my view, a minority) have passed strong reform laws and that we are today substantially better off than before Kelo. For example, I have long emphasized that reforms passed by referendum initiative tended to be quite strong. The main point of my analysis is to dispute claims that legislative reform is sufficient to address the problem, and take issue with various social science theories that predicted a much more effective backlash.
III. Lessons for the Future.
The Kelo experience offers several valuable lessons. First, there is the need to combine litigation and political action in any reform strategy. IJ and the broader property rights movement could not have been as effective if they had stuck to just one or the other. For example, most of the public would have remained unaware of the problem of eminent domain abuse if not for the media coverage generated by the Supreme Court case. Although preexisting Supreme Court precedent and eminent domain law in most states was even more hostile to property rights than the Kelo decision, the “rationally ignorant” general public was oblivious to this reality.
Second, the shortcomings of the Kelo backlash undercut the widely held belief that we don’t need judicial intervention to protect rights that are supported by majority public opinion. Although bolstered by such authorities as James Madison’s Federalist 10, this view has serious flaws that the Kelo experience highlights. A combination of political ignorance and interest group lobbying can easily lead to violations of rights that majorities value. It also makes it extremely difficult to correct those violations using the political process alone.
On a more positive note, the widespread political reaction to Kelo shows the potential for cross-ideological alliances on property rights issues. Kelo was denounced not only by conservatives and libertarians, but also by numerous left-liberal leaders and activist groups, such as Ralph Nader, Bill Clinton, Maxine Waters, the NAACP, and the Southern Christian Leadership Conference. They recognized that economic development and “blight” condemnations often target the poor and politically weak. It is unfortunate this potential alliance has been allowed to atrophy in recent years. Effective protection for property rights is unlikely to be achieved so long as the issue remains primarily a parochial concern of libertarians and conservatives.
Finally, I can’t resist pointing out that Kelo and the resulting backlash has been a great gift to takings scholars that just keeps on giving. For example, it enabled me to publish numerous articles, get offered various visiting appointments, and ultimately get tenure. I am currently writing a book on Kelo and its aftermath which is scheduled to be published by the Harvard University Press. And I owe it all to the justices in the Kelo majority.
As far as the public interest is concerned, I fervently hope that the the Supreme Court improves its takings jurisprudence. But when it comes to my own career interests, I hope the justices keep up the bad work!
CONFLICT OF INTEREST WATCH: As in previous posts on Kelo-related subjects, I want to note that I have written various pro bono briefs for the Institute for Justice. I also wrote a pro bono amicus brief in the Kelo case itself on behalf of the late Jane Jacobs.
porterhouse says:
Once again, I wish this had been an issue in 2000 when the Republicans nominated a candidate that abused eminent domain in order to get a MLB ballpark built and stuff his pockets with millions of dollars.
June 23, 2010, 4:29 pmHans Bader says:
One of the many problems with the standard applied in Kelo, which allows property to be seized for private development that arguably has beneficial side effects for the public at large, is that it renders the public-use requirement of the Takings Clause entirely redundant.
Kelo held that when the Takings Clause limited takings to those for a “public use,” it actually meant for “public purpose,” not public use.
But the Due Process and Equal Protection Clauses already require that any government land-use decision — including a taking — be rationally related to a legitimate public purpose.
So Kelo interpreted the public-use proviso as entirely redundant with other constitutional provisions, violating the canon of construction that provisions are to be interpreted in a way that gives each clause independent meaning.
But as the Supreme Court pointed out in Marbury v. Madison (1803), no “clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.”
So even if Kelo supporters are right that there is little specific evidence that the framers’ intent in adopting the public-use clause was to constrain transfers of private property from A to B, it is not the burden of the Kelo dissenters to provide such evidence, given that other interpretive rules, such as the principle that words in the constitution should not be treated as redundant, pointed in their favor.
Rather, it was the burden of the Kelo majority to show that original intent weighed overwhelmingly in favor of their pinched interpretation of the Takings Clause’s protections, given that their preferred result flouted basic canons of construction.
And given the observation in the Supreme Court’s 1798 decision in Calder v. Bull, soon after the framing of the Constitution, that it was plainly unconstitutional to transfer property from A to B, it is impossible to argue that the framers all intended that the public-use clause permit seizures of property for private development.
So the Kelo majority did not meet its burden of justifying its pinched interpretation of rights under the Takings Clause.
June 23, 2010, 4:30 pmHans Bader says:
Porterhouse’s comment is ironic, given that it was the Supreme Court’s liberal justices who voted for the Kelo decision (with the exception of one moderate judge who voted with them), while conservatives like Scalia, Thomas, and Rehnquist dissented and defended the little guy against takings for the benefit of Big Business.
It reminds me of how the shrill and dishonest Democratic National Committee Chairman Howard Dean falsely accused the conservative justices of allowing the taking in Kelo, when the conservative justices in fact all dissented against it, and the liberal justices Howard Dean likes all voted to allow private homes to be seized for the benefit of Big Business. (And Howard Dean’s home state sharply restricts property rights and the rights of homeowners).
June 23, 2010, 4:35 pmporterhouse says:
The conservative justices have been consistently sticking up for the “little guy” for the last several years, and the liberal justices are the tools of special interests. Ricci, Heller, Kelo, and Citizens United (Obama raised $600 million) are examples of the conservatives sticking up for the “little guy”. These liberal justices are distorting liberalism.
June 23, 2010, 4:40 pmIlya Somin on Kelo | Little Miss Attila says:
[...] Here. [...]
June 23, 2010, 4:50 pmMark Horning says:
Saying that Kelo alowed for a taking of private property for development is an overly broad generalization. The court basically said “we are not going to define what does or does not constitute a ‘public good’” and kicked it back to the lower court.
As for the backash, the state laws are quite divergent. For example, the AZ anti-Kelo law (actually a proposition so now part of the constitution) was so broadly written than any loss of value due to govenment action can be taken as a “taking”. Thus if you own a proptery in an unincorporated area and a city wants to expand it’s boundarys (and incorporate your property) that can be construed as a taking since being in city limits would lower your property value.
June 23, 2010, 5:03 pmMatt says:
In addition to the 5th anniversary of Kelo, which I believe was wrongly decided, we have the 5th anniversary of another landmark case in that term– Gonzales v. Raich– which, I personally think stretched the Commerce Clause so thin that you could drive a (INSERT LARGE OBJECT HERE) through it and probably will come to play when “Health Care Reform” makes it to The Court.
I believe I recall correctly that those decisions were also some of the last of the Rehnquist Court and the last that Justice O’Connor participated in as well.
June 23, 2010, 5:14 pmtroll_dc2 says:
Prof. Somin, would you have been denied tenure if the Supreme Court had gone the other way in Kelo?
June 23, 2010, 5:30 pmFub says:
How is this a problem for anybody except avaricious local governments?
June 23, 2010, 6:56 pmadam gold says:
Still surprised to this day about the Supreme Court’s decision in Kelo. It just opened the door for a public entity to be a conduit for transfer of private property. Clearly not what was intended under constitution. How did they screw it up so bad?
June 23, 2010, 9:34 pmgeokstr says:
If there was outrage every time the congress, the bureaucracy, and/or the executive and judicial branches did something that was “(c)learly not what was intended under constitution”, there would have been a second (maybe even a third) revolution already.
And as a conservative, I readily concede that when the R’s had control, they did their share of it too (although not nearly as much as the D’s).
A pox on all their houses, and the lawyers that justify the destruction of many of the solid core principles on which this country was founded and which were pretty obviously written into the Constitution, like limited federal government and specifically enumerated federal powers.
Instead a few short phrases, like the “commerce clause” and “the general welfare” have been ripped out of context in order to allow the unchecked growth of the federal leviathan. And of course, then there’s the amazing discoveries of formerly unseen penumbras and their other-worldly emanations in which are apparently embedded the philosophies of “social justice” and “redistribution of wealth” that are so beloved by our president and other Progressives.
June 23, 2010, 10:59 pmMike says:
Here in Montgomery County, Maryland, the “backlash” to Kelo was somewhat different:
From the May 2007 issue of the Montgomery County Attorney’s “Legal Views,” (emphasis added).
As you can all clearly see, I need to move.
June 23, 2010, 11:23 pmReviewing the Kelo decision | Legally Sociable says:
[...] The Volokh Conspiracy examines the consequences of the Kelo v. City of New London decision by the Supreme Court five years ago. Posted in Legal Tags: property rights, Supreme Court [...]
June 24, 2010, 10:49 amJIMV says:
I am firmly convinced these abuses of power will continue until both the politicians responsible and the Judges writing bad law are themselves punished in some way, not the poor schmuck driving the tractor that destroys ones home.
June 24, 2010, 10:51 amIn The Actions of Ordinary People Lie The Preservation Of Freedom « TeeJaw Blog says:
[...] Further reading on Kelo: Property Rights Five Years After Kelo [...]
June 24, 2010, 10:58 amJMH says:
I think this is a manifestation of a larger voter problem – a default assumption that government action is well-intentioned. Oh sure, sometimes “special interests” will skew things, and incompetence is always a problem, but the government is always fighting to protect the little guy against big, bad capitalists.
That view is so, so badly mistaken. Yet voters hold it, and kleptocrats exploit it to their advantage. I think that the underlying problem is that our Constitution, our heritage, and our own cultural mythology have convinced voters that our government is self-correcting, that some combination of judicial review and “political action” will keep the thieves and con-men away from power.
But ultimately it’s the voters who have to do that. Voters have to refrain from voting for amiable crooks who promise to steal on their behalf.
June 24, 2010, 11:33 amMark Horning says:
I didn’t say it was a problem. It’s a feature. My point was that while some state laws are very weak, others are very strong.
June 24, 2010, 12:05 pmFub says:
Cool. Hope the courts see it that way too.
June 24, 2010, 12:15 pmBrett Bellmore says:
They were, every one of them, nominated and confirmed by the people running the government. They were HIRED to screw it up that bad. That’s why, one by one, every limit on governmental power is falling. Being willing to let government do whatever it wants is the one real litmus test for a seat on the Supreme court.
June 24, 2010, 12:55 pmDaniel says:
From a practical perspective, here’s what the land at issue in Kelo looked like last fall.
June 24, 2010, 1:25 pmBenjamin Hemric says:
PART ONE
Adam Gold wrote (in part):
“Still surprised to this day about the Supreme Court’s decision in Kelo . . . . How did they screw it up so bad?”
Benjamin Hemric writes:
I am not an attorney and only follow Supreme Court decisions out of the corner of my eye, so I may be off base here. But what jumped out at me in the coverage of the Kelo decision is the apparent belief (unsubstantiated and erroneous, so it seems to me) among those who support eminent domain for economic development that it (eminent domain) is something that has been proven to be generally useful and, sometimes, even necessary for the fostering of (genuine and not illusionary) economic development. Seen in this light, forbidding eminent domain for economic development purposes would have been ignoring modern day economic “evolution” and, as a result, needlessly sentencing many localities to economic death. So for the Supreme Court justices who supported eminent domain for economic (supposed) development, sticking strictly to the law as it was once (long ago) laid out and rejecting eminent domain for economic development would have been foolishly unrealistic and antiquarian.
So it seems to me, admittedly a non-lawyer and only a casual observer of the Supreme Court, that if it could have been demonstrated to the Supreme Court justices that eminent domain is not only NOT necessary for economic development but that it is, in fact, usually harmful to genuine economic development, a pro-eminent domain Kelo decision would have seemed less “necessary” and thus less “logical” to the justices who favored it. While I understand that, strictly speaking, such arguments might actually have been irrelevant to the legal questions at hand, nevertheless, it seems to me that people (including Supreme Court justices) sometimes let non-relevant considerations enter into their decisions anyway (and then rationalize it later). So, in a way, maybe the anti-eminent domain for economic development forces were “punished” for sticking too strictly to the legal issues (and not addressing the “practical” emotional ones)?
- – - – - – - -
PART TWO
By the way, in my opinion the best arguments against using eminent domain for economic development are to be found in the works of Jane Jacobs — and not only in the obvious economic works (e.g., “Economy of Cities,” “Cities and the Wealth of Nations,” and the “Nature of Economies”) but also in her book about ethics, “Systems of Survival” (which seems to me to make a very good indirect case for keeping economic development decisions out of the political process).
A few years ago I read Jacobs’ amicus curiae (correct spelling?) Kelo brief, co-authored by Ilya Somin, and if I remember correctly I was somewhat disappointed as it seemed to me that Jane Jacobs left her best arguments “at home.” Again, if I remember correctly, at the time I figured that maybe either Jacobs or Somin thought her best arguments, as good as they were, were not really relevant to the narrow legal issues at hand (which you are supposed to stick to before the Supreme Court). But, as mentioned in Part One of this comment, it seems to me that while Jacobs’ best arguments may not have been, strictly speaking, relevant to the narrow legal issues at hand, it seems to me that as the case was actually decided by some justices, these arguments might have been relevant nevertheless.
So, in other words, maybe Jacobs, Somin, et al. were “punished” by taking the “ideal” high road and sticking to the rules, when the case was actually decided, to a certain degree, on an emotional, non-legal level?
Benjamin Hemric
June 24, 2010, 9:10 pmJune 24, 2010, 9:10 p.m.
Fat Man says:
Kelo was correctly decided, but the reasoning in the majority opinions was messed up by the odious doctrine of “incorporation”. Barron v Baltimore, written By Justice Marshall, held that the 5th Amendment did not limit the power of the States. Nothing has changed since then except the invention of the doctrine of “incorporation” by ex-Klansman Hugo Black in the 1940s.
As for the public use clause, it is not that obscure. Public use refers to the uses for which Congress may authorize the acquisition of property under Art 1 Sec 8, such as post roads, forts, and magazines.
June 24, 2010, 10:10 pmmatthew says:
I still don’t understand how people can come out against Kelo and not even mention the other direct history of the Supreme Court allowing emimnent domain transfers from private citizens to other private citizens. Kelo may have been wrong, but it certainly was based on US Supreme Court precedent.
Ilya, I would be interested on whether or not Midkiff was also wrongly decided – as that case involved what amounted to a condemnation of land from a few private citizens, and placing it directly in the hands of other private citizens. But the Supreme court was unanimous in allowing it (and this included O’Connor, Scalia, and Rehnquist).
June 26, 2010, 12:17 am