Kelo v. New London and Eminent Domain
When the United States Supreme Court heard oral arguments in the case of Kelo v. City of New London, Connecticut in February of 2005, the issue legally speaking was a seemingly straightforward matter of Fifth Amendment jurisprudence. What was at stake as a point of Constitutional law was the last clause of the Fifth Amendment, generally referred to as the "takings clause." The actual wording within the Bill of Rights is just twelve words long: "nor shall private property be taken for public use, without just compensation." The government has an enumerated constitutional right, therefore, of what is termed eminent domain, and the only legal issue here was one of interpretation of those twelve words. To couch what was at stake in Kelo in such a deliberately bland and legalistic manner, though, utterly understates the extent of public outcry and outrage the Supreme Court's decision in Kelo would occasion when the decision, written by Justice John Paul Stevens, was handed down four months later. In part, the public outcry was occasioned because Susette Kelo made a particularly sympathetic media story: she refused to yield up her "little pink house" in New London's downtown Fort Trumbull neighborhood to the city's particularly broad interpretation of "public use." At the time of oral arguments on February 22, 2005, Dahlia Lithwick then writing for Slate gave a summary of what constituted "public use" in Kelo:
In the working-class neighborhood of Fort Trumbull, Conn., the local government has some big plans. Not a monorail, but adjacent to and complementing a brand new $300 million research facility for the pharmaceutical giant, Pfizer, there would be condos, health clubs, a luxury hotel, shops, and other assorted mega-stuff. Most of the folks in town agreed to sell, but seven families, owning 15 homes, refused. They like their crumbly Victorians. So when the state tried to condemn their property, they sought injunctions. Traditionally, the "public use" requirement in eminent domain cases allowed the local government to condemn property to build railroads, or bridges, or highways. But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use" could include condemning blighted neighborhoods to build better ones. Fort Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981 -- razing hundreds of homes to build a GM plant -- many jurisdictions have insisted that increased tax revenues and the prospect of new jobs was "public use" enough to justify nabbing land that subsequently became Costcos, shopping malls, and fancy office buildings. New York used eminent domain to improve Times Square and build the World Trade Center. The Connecticut Supreme Court agreed with New London that seizing homes for purposes of private economic development was permissible. The homeowners appealed. (Lithwick 2005).
The Supreme Court's decision was authored by the Nixon appointee John Paul Stevens, who was joined by the court's liberal wing in 2005, Justices Kennedy, Souter, Ginsberg and Breyer, and found in favor of New London's right to claim Susette Kelo's home under eminent domain. Those dissenting were Chief Justice Rehnquist, Justice Sandra Day O'Connor, and the court's paleoconservative-originalist phalanx of Scalia and Thomas. But the public condemnation of the decision was immediate, as was legislative response on the state level. However, six years after the Kelo decision, it is worth inquiring what effects is seems to have had. This survey will assess various interpretations of what the effects of Kelo have been, and to see if the "fallout," so to speak, has been as radioactive as the initial public response to the decision might have indicated.
The initial public outcry from intellectuals and members of the legal community, upon reading Stevens' decision in 2005, was quickly joined by journalists and members of the public, especially in response to what were seen as sudden reactions by state and local governments to take advantage of what seemed to be unusually broad powers now granted to them by the Supreme Court under the Fifth Amendment. Woodyard and Boggs in their 2009 survey of the public response -- or "outcry," to use the term they use -- to Kelo summarize:
Critics of Kelo were quick to seize upon reported local government actions, which they saw as abusive uses of eminent domain powers. For example, the Institute for Justice contended that the City of Freeport, Texas attempted to condemn waterfront shrimp processing companies in order to develop a marina mere hours after the Supreme Court rendered its judgment....
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