From gun control to vaccine mandates, the tension between government powers and individual liberties is reflected in many contemporary political issues. The controversy surrounding eminent domain - the government’s power to seize private land for public use with payment of compensation - is no exception. Although eminent domain can be used by the government to facilitate important public development projects, it also often infringes on Americans’ property rights – the legal right to own, use, and sell one’s own property in land and other goods (West). Thus when Susette Kelo had her home seized by the city of New London, Connecticut through eminent domain, she filed suit against the city. She argued that New London had violated her property rights per the Fifth Amendment because they had intended to sell her home to private developers. Eventually, Kelo v. New London reached the Supreme Court, which controversially ruled in favor of the city of New London. This decision was met with severe nationwide backlash because it allowed Kelo’s home to be sold to private developers. Ultimately, this encouraged eminent domain abuse and hampered Americans’ economic freedoms.

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The history of eminent domain abuse in America began in the years following the Revolution, when numerous state legislatures ignored the rights of property owners. Despite their rhetoric about protecting economic rights, many legislatures prevented the payment of debts owed to British merchants and enacted bills of attainder to confiscate Loyalist property without any judicial proceedings. Between 1776 and 1787, “neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses” (Ely). Consequently, the Founders built in rigorous protections for property rights within the Bill of Rights. As James Madison stated in Federalist 54, “Government is instituted no less for the protection of the property than of the persons or individuals.” The most important safeguards for property rights are described in the takings clause of the Fifth Amendment, which states that private property cannot “be taken for public use, without just compensation” (US Const. amend. V, sec. 5). This functioned to protect property owners by ensuring that the financial burden of eminent domain, known as “the despotic power”, would be placed on the whole community. Furthermore, James Madison intentionally placed the takings clause immediately after the due process clause, in order to underscore the Founders’ belief that property rights and individual liberty were intertwined (Ely). 

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By 1800, then, the federal Constitution and most state constitutions explicitly protected the rights of property owners. Throughout the Nineteenth century, the Supreme Court established precedent that eminent domain could not be used for private takings even with payment of just compensation. As Justice Samuel Chase emphatically insisted in Calder v. Bull (1798), “a law that takes property from A and gives it to B…cannot be considered a rightful exercise of legislative authority.” During the Twentieth Century, however, Progressives attacked the notion that property was a fundamental right and called for increased government involvement in regulating the economy. This, coupled with the political hegemony of the New Deal, led to the unraveling of the longstanding judicial support for property rights. The Supreme Court steadily reduced the “public use” requirement of eminent domain in a series of post-World War Two rulings, culminating in Kelo v. New London (Bill of Rights Institute). 

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In 1997, Susette Kelo purchased and carefully restored her little pink Victorian house in the Fort Trumbull neighborhood of New London, Connecticut. She had finally achieved her lifelong dream of owning a home that overlooked the water. Her neighbors, the Dery Family, had lived in the Fort Trumbull neighborhood for a century. Further, this vibrant neighborhood “reflected the American ideal of community and the dream of homeownership” (The Institute for Justice). Tragically, the City of New London would turn that dream into a nightmare. 

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In 1998, the City wanted to buy and tear down Kelo’s home and over 100 other houses in order to allow the New London Development Corporation, a private body, to revilitze Fort Trumbull. There were plans to build a resort hotel, luxury condominiums, and a conference center, but Kelo and fourteen other property owners in New London held out and refused to sell their land to the city (Bill of Rights Institute). Eventually, the city invoked its eminent domain authority in order to take the land. Once again, the Takings Clause of the Fifth Amendment states “…nor shall private property be taken for public use without just compensation.” To meet the requirement for “just compensation”, the City offered to pay the owners fair market value for their homes. Susette Kelo and others whose property was seized sued New London, and the fight over Fort Trumbull would eventually reach the Supreme Court (The Institute for Justice). 

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The property owners claimed the city violated the Fifth Amendment’s Takings Clause by arguing that taking private property to sell to private developers did not qualify as “public use.” Furthermore, they advocated for the narrow interpretation of the “public use” rule, allowing “takings only for publicly owned projects (such as a public road), or private ones that have a legal duty to serve the entire public, such as a public utility” (Somin). The city countered by promoting the broad interpretation of the “public use” rule, in which almost anything that could benefit the public in some way would qualify as a public use. Therefore, New London’s invocation of eminent domain would be constitutional because the private development would create hundreds of jobs, increase tax revenues, and allow for greater public access to the Thames River (Oyez). 

 

Ultimately, the Supreme Court affirmed the broad view and sided with New London in a highly controversial 2005 decision. The Court ruled 5-4 that the Fifth Amendment did not require that seized property be used by the public so long as it served a public purpose, rejecting a literal requirement of “public use.” Further, a city could seize private property for private commercial development if “the redevelopment would economically benefit an area that was sufficiently distressed to justify a program of economic rejuvenation” (Cornell Law School). In his concurring opinion, Justice Kennedy conceded that cases in which the use of eminent domain to transfer property to a private owner would not be permitted if the new owner would benefit more than the public. However, he found no evidence to suggest that this would occur in Kelo v. New London (Wood). 

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In the Court’s dissenting opinion, Justice O’Connor interpreted the public use requirement literally and argued that this decision abanbonds long-held, basic limitations on government power. Under the guise of “economic development,” all private property would now be “vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process” (O’Connor). To establish that incidental public benefits resulting from eminent domain being used to transfer private property to private developers qualifies as “public use” is to effectively remove the public use requirement from the Takings Clause of the Fifth Amendment (Oyez). Consequently, there would be no effective check on the eminent domain power. In a separate dissenting opinion, Justice Thomas argued that the Fifth Amendment allows the government to take property “only if the government intends to own the property or literally allow the public to use it” (Wood). He describes the irony in how the federal courts closely examine the justification for the search of a person’s home, but not for seizing it and giving it away to a private party (The Institute for Justice). 

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Ultimately, the ruling sparked a nation-wide backlash against eminent domain abuse. In response to Kelo, a total of forty-seven states rigorously filled the vacuum of federal constitutional protections for property rights. Thirty states tightened their definitions of “public use” or “public purpose.” Nine states increased the burden of proof in eminent domain cases, “either by requiring the government to prove public use or by removing deference from the government’s assertions” (Yale Law). And two states outright prevented the transfer of condemned property to private parties for any reason. In addition, numerous state supreme courts proposed statutory changes and increased protections against takings for private use (West). 

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Moreover, the publicity surrounding the Kelo decision educated the public about eminent domain abuse. Polls show that Americans are overwhelmingly opposed to the Supreme Court’s decision and support efforts to better protect property owners (see fig.1). Although Kelo v. New London was a victory for the broad view, the decision destroyed the consensus behind it – and the narrow view has never been more popular. Furthermore, the recent campaign against takings for pipelines has brought together “property rights advocates on the right and environmentalists on the left” (Somin), demonstrating the cross-ideological reaction against eminent domain abuse following Kelo v. New London. Despite the overwhelming effort to increase property rights after Kelo v. New London, the Court’s decision nevertheless exacerbated eminent domain abuse and shrunk Americans’ economic freedoms. 

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Throughout the nation, state and local governments became more aggressive in abusing eminent domain for the purpose of “economic development” following Kelo v. New London. In New York, for example, the replacement of a CVS with a Walgreens was considered to have a valid public purpose for eminent domain (Yale Law). Considering how little the public benefits from having a Walgreens versus a CVS, Kelo v. New London drastically lowered the bar for what development projects qualified as having a “public purpose.” Thus practically any development project could then be interpreted as a valid public purpose for eminent domain. Effectively, this enabled big corporations to use eminent domain to take land from any small business or individual, so long as the land would be developed. Further, solely requiring a “public purpose” for eminent domain ignores the subjective value that “many attach to their land over and above its market value…like social ties and a small business’s network of clients” (Somin). Even worse, studies show that many property owners don’t receive the fair market value compensation that the Constitution requires, especially for poor or minority owners. At the end of the day, by demolishing homes and small businesses and destroying neighborhood social capital, many takings destroy more economic value than they create (Somin). 

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Moreover, in reducing Americans’ property rights, Kelo v. New London also contracted economic and political freedoms. Property rights inherently disperse the control of production among many individuals, so that no single party has too much control over economic resources. As a result, “millions of individuals own their own resources which they can use for whatever they see fit” (Boyce). This allows for individuals to have the freedom to pursue their own economic interests and it provides an incentive for people to work and save. In contrast, by reducing consumers’ rights to the property they purchase, the value of that property decreases dramatically which ultimately stifles the economy. In general, the protection of the right to own, use, and sell property allows individuals to live life and pursue happiness according to their own personal values. Further, the economic independence resulting from strong property rights leads to personal and political independence, which is instrumental for a self-governing society (Carson). 

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Proponents of the Supreme Court’s decision in Kelo v. New London argue that it was beneficial to give states the power to determine when eminent domain can be invoked. The variation of eminent domain laws, they claim, is healthy and reflects “the variations in local conditions that exist in a nation as large and diverse as the US” (Yale Law). Thus state officials are supposedly more equipped to make decisions regarding eminent domain than federal courts. While this may be true for some functions of government, the decision set a dangerous precedent for ignoring individual rights (protecting against eminent domain abuse) explicitly mentioned in the Federal Constitution. What is to stop the Supreme Court from ceasing to protect constitutional rights and instead declaring that the states are free to provide those protections? Should the right to freedom of speech vary state by state? Such variability in the treatment of fundamental rights would make the federal constitution useless (Yale Law). 

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Although Kelo v. New London significantly contracted federal property rights, its most significant impact was bringing awareness to the issue of eminent domain abuse. Acting on the Founders’ belief that property rights and individual liberties were intertwined, state and local governments as well as citizen activists have stepped up to protect land from being unjustly seized by the government for the benefit of private corporations. In the words of Justice Sandra Day O’Connor, if the government’s eminent domain power isn’t properly checked, “nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”