Anniversary of a Mistake: Kelo Six Years Later
June 23rd marks the sixth anniversary of the ruling in the Case of Kelo v. New London, in which the Supreme Court ruled that state governments could take land under eminent domain powers for “greater public use”, even if the land was being handed over to third-parties. However, after six years, the damaging effects of this decision are gradually being reversed, with a several state legislatures passing laws which effectively negate the ruling.
In Kelo, the Supreme Court dealt with the issue of whether a "public purpose" constitutes a "public use" for purposes of the Fifth Amendment’s Taking Clause: "nor shall private property be taken for public use, without just compensation." Specifically, the issue was whether a private home could be taken by the state government and handed over to a private developer for reasons of “economic development.” Traditionally, eminent domain could only be invoked by the government in land taking if the land was going to be used by a public authority. The decision was widely criticized at the time as a misinterpretation of the Fifth Amendment and an opportunity for well-connected private organizations to use government power to abuse private landowners. As Justice Thomas noted in the dissent:
“This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’”
It should be noted that six years later, and after $78 Million in government spending, there has been little development on the land at issue in Kelo.
However, recent battles at the state level have demonstrated the extent of public opposition from the decision. In Kansas, legislation passed in response to Kelo requires a majority vote of the state legislature in order for land taken by eminent domain to be handed over to private organizations. In Texas, recently passed legislation goes further, banning the taking of land for private use and requiring fair value assessments for all land subject to eminent domain.
The Property Rights Alliance, while being deeply concerned with the ongoing effects of the Kelo decision, applauds the efforts of state legislatures and grassroots organizations to reverse the results of this wrong-headed decision. Hopefully, the anniversary of the case will cause legislators in other states to follow the lead of those in Texas and Kansas.