The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain by Ilya Somin, University of Chicago Press – 2015

In his book, The Grasping Hand: New London and the Limits of Eminent Domain, Ilya Somin, a law professor at George Mason University Law School, traces the history of eminent domain and 5^th Amendment takings from colonial times to the 2005 Supreme Court decision in Kelo v City of New London.  This is not a minor intellectual topic. The protection of the rights of private property owners is a cornerstone of any free country and of any free market economy.  In the United States, the 5^th Amendment to the Constitution provides that, “private property shall [not] be taken for public use without payment of just compensation” (emphasis added.)  Notwithstanding these limiting words, the U.S. Supreme Court has sanctioned the government (primarily local and state governments) taking of private property and its transfer to other private parties whose use of it may be of little benefit to the general public.

The most recent example of this disfigurement of the Constitution was found in New London, Connecticut where, in 2005, the Court sanctioned the seizure of several private homes so that New London could transfer the property to the Pfizer pharmaceutical corporation in order to build a new corporate headquarters, a luxury hotel, and a corporate conference center.  The principal authority for this seizure was a 1954 Supreme Court ruling in Berman v Parker in which the Court held that a seizure need not be for a traditional public purpose, i.e. a school, a hospital, or a highway, but that the seizure merely have a “public purpose” such as producing greater tax revenues by ending “urban blight”.  (Whether the seized property was, in fact, blighted is left to the judicially unreviewed discretion of the government agency seizing the property.)  The saddest irony of the Kelo case was that, after all of the litigation, and the loss of scores of homes, Pfizer changed its mind and never built the planned corporate park and hotel.

The vast majority of seizures — since the Berman decision more than 80 percent of all private property condemnations — have been for such non-public uses such as building sports arenas, corporate office space, and general urban renewal and not for traditional public uses such as building schools or highways.  The Supreme Court’s rationalization has always been that since “everyone benefits” from a neighborhood being generally improved, there is an inherent “public purpose” to the seizure. Thus, even if the seizure was not for a traditional public use, it is sanctioned by the 5^th Amendment.  That this is not what the plain language of the 5^th Amendment states seems to have escaped the Court’s notice.

As Somin discusses, courts have been reluctant to second guess what a state legislature or a city council thinks is “blight” requiring government action to eliminate it.  This judicial reluctance is a moral and constitutional cop-out. There has been no reluctance on the part of federal or state judges to second guess the legitimacy of search warrants, confessions, the providing of a fair trial (i.e. due process of law), the scope of government limitations on freedom of speech or the press, the scope of the right to bear arms or the meaning of the 14^th Amendment’s equal protection and due process clauses; so why the reluctance to judge the validity of takings under the 5^th Amendment? No explanation is offered, nor have judges ever tried to explain their sudden judicial restraint in this particular area of constitutional law.

Somin traces the history of 5^th Amendment takings dating back to post-colonial times when many takings were made for the purpose of building privately owned dams that had a generalized public benefit by creating water power or the construction of privately owned turnpikes.  Many of the more controversial public benefit takings did not start until the New Deal, or thereafter, when urban renewal became all the rage. The trend became the seizure of private property – which typically had housing already on it – in order to use it for the building of massive public housing projects. That many of those public housing projects later became worse slums than the smaller, privately owned “slums” that they “renewed” is discussed at some length in the book. Sadly, no government official, or agency, has ever been held accountable for these widespread, often well publicized, failures. As Somin discusses, much of the impetus for these renewal projects came not from elected legislators or elected executive branch officials but rather from real estate and construction industry developers who were also major sources of campaign funds.

Perhaps the most outrageous example of crony-capitalism seizures of private property was the infamous Poletown case, in which the City of Detroit seized thousands of private homes so that General Motors could build an automobile factory.  The Michigan Supreme Court sanctioned this theft on the grounds that the promised creation of 5,000 new jobs was a public use justifying the seizure of thousands of private homes and businesses. The cruelest irony was that fewer than half of the promised jobs were ever created and, several years later, a newly constituted Michigan Supreme Court partially reversed its Poletown decision in County of Wayne v. Hathcock, allowing takings in “blighted” areas but prohibiting takings for economic development.

The public reaction to the U.S. Supreme Court’s 2005 Kelo decision was swift and harsh. It was widely denounced as a threat to all private property rights. After all, if Kelo were followed to its logical conclusion, there would be nothing to stop the government from seizing 100 private homes so that a private developer could construct a high rise apartment that would pay more in local property taxes.

The problem is that many of the legislative attempts to prevent another Kelo-like case from ever happening again were half-hearted and possibly made in bad faith.  Although state laws were changed to bar 5^th Amendment takings for economic development, a gaping – and likely intentional – loophole was left in those statues. There was no prohibition of takings to end undefined, judicially unreviewable, allegations of economic or social “blight.”  Almost any taking barred on economic development grounds could still be “justified” on the grounds that the affected property was “blighted.”

Somin carefully traces and analyzes both the history of the takings clause and the development of the “public purpose versus public use” expansion of its scope to the point where no private property is truly safe from any government bureaucrat or private developer with enough political clout to get its way.  Many of the state laws passed in response to the Kelo decision need to be substantially strengthened and federal law needs to be rewritten to bar illegitimate seizures of private property for other private, or quasi-private uses that primarily benefit the political party controlling the local government and its crony-capitalist allies.

This is an important book that, because of its arcane Constitutional premise, has not received the widespread publicity that it deserves. The Kelo decision and the weak responses to it by many state legislatures have left many citizens with a false sense of security.  Eternal vigilance truly is the price of liberty and greater vigilance, and efforts, are required to prevent Kelo from rearing its ugly, if somewhat shrunken, head again.

Joel C. Mandelman is an attorney practicing in Arlington, Virginia.  He has filed amicus briefs with the U.S. Supreme Court on behalf of Abigail Fisher in her challenge to the University of Texas’ racially preferential admissions policies and on behalf of the State of Michigan in defense of its state constitutional amendment barring all racial preferences in college admissions, government hiring and government contracting.  See the Contributors page for more about Mr. Mandelman.  Email him at joelcm1947@gmail.com.

(Correction, Nov. 8:  An earlier version of this post misstated the holding in Hathcock as fully reversing the Poletown case. Ed.)

(Correction, Nov. 20:  In an email to this site’s administrator, Professor Somin points out that “Pfizer was not going to be the new owner or developer of the condemned property.  As explained in the book, they lobbied for the project and hoped to benefit from it, but were not going to own or develop the land themselves.” Ed.)