Looking Back Ten Years After Kelo
Dana Berliner is the Litigation Director of the Institute for Justice. Along with her colleague Scott Bullock, she represented the homeowners in Kelo v. City of New London from the inception of the case to its conclusion at the Supreme Court. This year marks the tenth anniversary of the Supreme Court’s decision.
Introduction
For many years, states and municipalities throughout the country routinely used eminent domain for essentially private projects. The idea was that the private party—usually a larger-scale enterprise—would bring more money, more employment, and more tax dollars to the area than the current residents or small businesses provided.1 There was an industry of consultants willing to conduct studies that would find an area—any area—to be in need of redevelopment. Cities or states could then adopt these studies to justify the use of eminent domain for private projects that had already been planned.2 Most lawyers thought there was little point in fighting this use of government power. They focused instead on trying to obtain compensation for those who lost their homes or livelihoods to the abuse of eminent domain.
I began working on my first eminent domain case in 1996, and was struck to find that here—most unusually—was a modern issue that constitutional text directly addressed. The Fifth Amendment states, “nor shall private property be taken for public use without just compensation.”3 My initial, inexperienced impression was that this clause meant just what it said. And over the years, my conviction has not changed that this straightforward language indeed indicates an unequivocal truth—that the Constitution prohibits takings for private use.4
But on June 23, 2005, the Supreme Court decided Kelo v. City of New London.5 It was a dramatic, 5-4 loss for constitutional rights, with sweeping language that virtually removed federal constitutional protection of private property under the Takings Clause. The Court held that “economic development” satisfied the public-use requirement of the Fifth Amendment.6 Essentially any development that the local government body could anticipate benefitting the public would qualify as a public use, thus permitting the government to displace the existing owner of a property. In other words, henceforth the federal constitutional protection against private-use takings would be minimal.7
Apparently acknowledging that it was withdrawing key federal constitutional protections from the entire population of the United States, the majority opinion suggested that states remained free to restrict the use of eminent domain themselves.8 In this Essay, I assess the aftermath of this suggestion, the state-level backlash against the Kelo decision, and the case’s implications for federal constitutional law.
I. almost enough: the state response to kelo
In one sense, states have filled the vacuum of federal constitutional protection amazingly well. In response to Kelo, a total of forty-four states changed their laws: Eleven changed their constitutions,9 while forty enacted a broad range of statutory changes.10
The bulk of these changes relate to the meaning of “public use” or “public purpose.” Thirty states tightened those definitions to various degrees.11 Twenty-five states changed their definitions of “blight,” requiring a closer connection between the taking and the protection of public health or safety, and diminishing the government’s ability to designate large areas as blighted based on the condition of a few properties.12 Eleven states gave prior owners a right of first refusal to repurchase property that has not been used for the purpose for which it was condemned or that is later sold by the condemnor.13 Nine states changed the burden of proof in eminent domain cases, either by requiring the government to prove public use or by removing deference from the government’s assertions.14 And two states prohibited transferring condemned property to private parties for any reason, at least for ten years.15
In three of the six remaining states without constitutional or legislative change, the high courts increased protections against takings for private use.16 High courts in seven states with statutory changes also imposed additional protections.17 Thus, in the aftermath of Kelo, a grand total of forty-seven states increased protection against takings for private use.
II. the problems that remain: kelo’s surviving impact on property protection and federal constitutional law
Even after the overwhelming state response to Kelo, two significant problems remain. The first is obvious—nearly every state provided greater protection against private takings. Some did not. Although forty-seven is a high number, that still means that, in three states (Arkansas, Massachusetts, and New York), the District of Columbia, and the U.S. territories, citizens are left with only the non-protection offered by the Supreme Court.
In jurisdictions with no statutory, constitutional, or judicial reform, courts allow the use of eminent domain for, seemingly, any private use. Since Kelo, the use of eminent domain in New York has been by far the worst. It sounds like a parody of takings horror stories. According to the New York Courts, all of the following were valid public purposes for eminent domain: private development around a sports stadium,18 the expansion of Columbia University,19 the replacement of a CVS with a Walgreens,20 and the enhancement of a golf course.21 The District of Columbia, which is subject only to federal constitutional restrictions, has used eminent domain for an ill-conceived shopping mall; it has taken almost a decade to land an anchor tenant.22 The Supreme Court of Guam approved the taking of private land for the benefit of the Mayor of a Guamanian city.23 And a few of the states with statutory reforms have even seen court decisions weaken those protections.24
Even among the many states that made changes, every state did something different. No two states adopted the same legal changes. While homeowners in New Hampshire cannot have their property condemned for private use, homeowners in New Jersey might or might not be protected—they would probably spend five years litigating the legality of the taking—and homeowners in New York are completely out of luck. Highly varied and uneven protections might be interesting as a matter of social policy experimentation,25 but they are no way to deal with the protection of constitutional rights.
This is the second and most significant problem that remains after Kelo: the Court set a dangerous precedent for ignoring constitutional protection for individual rights when it seems they are inconvenient to government plans. It is hard to imagine any other area of law in which the Court would say that federal courts will no longer be protecting a right that is explicitly mentioned in the Federal Constitution but suggest that instead the states are free to provide that protection. Do we want the right to free speech, or the right to be free from unreasonable searches and seizures, to vary by state, with some states providing strong protection and others virtually none? Highly varied and uneven protections would certainly allow for an interesting comparison of different policy approaches. But having such variability in the treatment of significant rights would defeat the purpose of having a federal constitution.
For this reason, the Court interprets other federal constitutional provisions as creating a floor below which the government cannot go. Even when states choose to raise that floor, the Federal Constitution still imposes real restraints on government power. We know this because some laws and policies are indeed struck down as a result of those federal restraints.26 In other areas of constitutional law, the Court does not use the fact that states can enact more stringent rules as an excuse to virtually eliminate protection under the Federal Constitution. But when it comes to private takings, the Court is all too eager to pass the responsibility for rights protection (or judicial scrutiny) on to someone else. As Justice Thomas sharply noted in his Kelo dissent, federal courts will closely examine the justification for searching a person’s home, but not for taking it away and giving it to a private party.27
In removing the floor from the Public Use Clause, Kelo presents a prime example of judicial abdication. The Court decided not to exercise its duty to check the executive and legislative branches. Instead, it applied the rational-basis test—essentially, it deferred to New London’s position, despite the Constitution and despite the evidence. As the Court explained in United States v. Carolene Products, rational basis review is supposed to apply only to unenumerated rights.28 Yet the Kelo Court applied it to the explicit language in the Fifth Amendment. And just as it ignored that text, it also ignored the evidence adduced at trial. The facts showed not only that the proposed project would not live up to expectations, but that it would not be constructed at all. The developer actually said that there was no market for the project and that it would not build anything.29 Even under the rational-basis test, the taking could not be said to fulfill a public purpose.
It is a sign of the constitutional damage Kelo caused that these two related features of the opinion—blind deference and the refusal to engage with facts—have marked post-Kelo jurisprudence. In one of the first cases to follow Kelo, the Fifth Circuit held that a condemnation for “economic development” had to be constitutional even though the proposed taking of a family shrimping business would benefit a single influential family.30 And while Kelo at least emphasized the state legislature’s finding that economic development had a public purpose,31 the Third Circuit later held that economic development remains a public use under the Federal Constitution even when the state legislature expressly forbids condemnation for economic development.32 Continuing the trend, the Second Circuit—upholding condemnations for private development around a sports stadium—disregarded evidence that the developer had abandoned many of the alleged public purposes for the project almost immediately after it was approved.33
Kelo’s destructive legacy, particularly for the federal courts, is on full display in these decisions. Kelo directs the judiciary to uphold eminent domain no matter what the facts may be. This doctrine is inconsistent not only with the constitutional text but with the rule of law itself.
No ten-year retrospective on the Kelo decision would be complete without noting its aftermath in New London. No building was ever constructed on the site of the condemned homes, or even in the project area more generally34—just as the trial evidence had shown would be the case.35 The project site is now a field of weeds, a home for feral cats, and, occasionally, a dumping ground for storm debris.36 The original developer disappeared long ago, as have a string of subsequent developers, none of which have been able to finance the project.37 The only construction on the site has been some renovation of a building that New London obtained from the federal government. There has been no development at all on any property acquired by eminent domain or under threat of eminent domain.38 The most recent proposal also would build only on voluntarily-acquired property.39 Before condemnation, the area was a working-class neighborhood, where people knew their neighbors and where, in many cases, families had lived for generations.40 Now, it lies empty, as it has for the past nine years.
What, then, are the prospects for future protection against takings for private use? For now, states will continue to be the main fora for legislative reform and constitutional litigation. State legislatures must continue to shore up their statutory and constitutional protections against eminent domain abuse. They must resist the inevitable pull toward greater discretion, toward allowing their governments to use eminent domain to sweeten the deal for private projects. Those states that have taken no legislative action must do so. In states that have a process for citizen initiatives, these can also provide long-lasting protection of rights. And state courts must give full effect to their states’ legislative and constitutional reforms and provide the protections that the federal courts have denied.
But the states can only do so much on their own. I remain hopeful that, eventually, the Court will admit its mistake in Kelo and restore the protection against private takings that the Federal Constitution requires. Everyone has the right to be free from the threat of having her home or business seized for someone else’s benefit, regardless of which state she lives in.
Preferred Citation: Dana Berliner, Looking Back Ten Years After Kelo, 125 Yale L.J. F. 82 (2015), http://www.yalelawjournal.org/forum/looking-back-ten-years-after-kelo.