Remembering Kelo

On June 23, 2005, the United State Supreme Court dealt a fatal blow to private property rights with the decision issued in Kelo v. New London. chinaThis landmark ruling allows state and local governments to use the previously redefined meaning of “public use” from the Fifth Amendment (also known as the Takings Clause) to use eminent domain to essentially steal property from one private entity and transfer it to another.

In case you’re not familiar with Kelo, here is some background. The City of New London, Connecticut sought to redevelop the Fort Trumbull neighborhood in hopes of increasing the city’s tax base (“economic development”). Several property owners refused to sell to the city, including Susette Kelo, and condemnation proceedings were started by New London Development Corporation, a private body acting on behalf of the city. Ms. Kelo received her condemnation notice the day before Thanksgiving in 2000. The case worked its way through the courts and as we know, it was unsuccessful.

As of today, the property taken by New London sits vacant, with not even the slightest appearance of development.

The Institute for Justice noted just one year after the Kelo decision was announced “more than 5,700 properties nationwide [had] been threatened by or taken with eminent domain for private development.” Compare that to around 10,000 instances of Kelo-style takings from 1998 to 2002.

Kelo wasn’t the first ruling that had a significant impact on property rights. The groundwork was laid for the decision in Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker (1954).

In Berman, the Supreme Court effectively displaced 5,012 people, nearly all were African-Americans, from their homes in a DC neighborhood.

In the court’s decision, Justice William Douglas deferred power to Congress and the District of Columbia (judicial deference) and expanded the purposes where eminent domain could be used:

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.

By the way, this is the same court that issued the Brown v. Board of Education decision. Something that certainly cannot be disputed is how use of eminent domain impacts the poor and minorities. So much for the Supreme Court protecting the rights of minorities and being a great defender of civil rights.

In 1984, the Supreme Court ruled in Hawaii Housing Authority v. Midkiff that a Hawaii law, the Land Reform Act of 1967, was an acceptable use of eminent domain. This law allowed renters to take property from their landlords. In her opinion, another example of judicial deference and the rational basis test, Justice Sandra Day O’Connor wrote:

This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause.


The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.

Ironically, O’Connor’s dissent in Kelo has been praised, but her opinion in Midkiff was actually cited as precedent by the majority.

Condemnation of the ruling in Kelo was widespread by politicians and activist from across the political spectrum. At this point, 43 states have passed protections against the Kelo-style takings. Still more can be done to sure up protections in many states.

One thing is very clear. Our Founding Fathers had a very special view of private property. John Adams once said, “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist.”

constitutionJames Madison, the Father of the Constitution, also noted the importance of protecting private property. He said, “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.”

We need to press our elected officials at all levels of government and remind them that property is sacred. We do not spend our lives laboring to provide for ourselves and families only to have the government come and take the most sacred of our rights from us. Simply put, property rights are not subject to a majority vote.

Kelo is a painful reminder of how our most basic of rights are being eroded away by an overreaching government that has no regards for the Constitution.

This was originally published on June 23, 2009.

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