Kelo v. New London Twenty Years Later

Amazingly, it’s been two decades since the U.S. Supreme Court issued one of the most egregiously wrong decisions in constitutional history: Kelo v. New London. This infamous eminent domain decision allowed states to seize people’s property and give it to private developers for their own profit, even though the Fifth Amendment to the Constitution provides that government may only take land “for public use,” and not for private use. The Court rationalized that the new development would create jobs and increase tax revenue, which would benefit the public. But by that logic, government could justify replacing any small business or modest home with shopping malls and mansions. Moreover, bureaucrats are bad predictors of economic success. What ever happened to the land that the government took from Susette Kelo?  As Prof. Somin mentions, twenty years later, it still lies vacant—home to weeds, trees, and “feral cats.”

What, if anything, protects your family’s home or small business from suffering the same fate today? I had the chance to reflect on the ruling in a Federalist Society online event that featured Professors Peter Byrne of Georgetown and Ilya Somin of George Mason University, as well as Wesley Horton, the attorney who argued the Kelo case on behalf of the state. You can watch it online here or below.

There’s bad news and good news. The good news is that several states—most notably, Arizona—took steps to protect property owners against the government’s mercenary use of eminent domain. That includes state court decisions in some states expressly rejecting the theory that the federal courts adopted in Kelo. The bad news is that many of the purported reforms that were adopted in the wake of that decision turned out to be meaningless window-dressing. Worst of all were assurances that eminent domain can’t be used unless property is “blighted.” That’s just not true—in part because the word “blight” actually doesn’t mean anything at all.

But, as I said, there has been significant progress. In the video, I mention the Arizona Property Rights Protection Act, also known as Proposition 207, that Arizona voters adopted in the immediate wake of the Kelo ruling. Two decades later, that law—which protects property owners not only against eminent domain but also against so-called “regulatory” takings—has been an extraordinary success. You can learn more about it and how other states can build on Arizona’s success here. And you can learn more about the case and why it was so patently wrong in Cornerstone of Liberty: Property Rights in 21^st-Century America co-authored by me and Christina Sandefur.

Private property is mentioned in the U.S. Constitution more than any other right. Yet the Supreme Court has relegated this right to (in the Court’s own words) the “status of a poor relation,” upholding abusive restrictions on the right to own, use, buy, and sell property. Fortunately, our federalist system empowers states to protect individual rights more broadly than the federal Constitution does. Many states have done that in the past (seehere for more details)—and can do so again, if they’re willing to step up.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.