Supreme Court’s Eminent Domain Ruling “An Outrage”

Originally posted: July 1, 2005

Last week the United States Supreme Court ruled that your home is not your castle. Last week the United States Supreme Court ruled that your right to own a single-family home or a small business pales in comparison to a city’s right to smash your property to construct a casino, an office building, a strip mall, a high-rise condo, or a Wal-Mart–all in the name of increased tax revenues and “economic development.” The Supreme Court’s decision is an outrage.

In Kelo v. City of New London, the Supreme Court, in a 5 to 4 decision, paved the way for New London, Connecticut and its private economic development partner to seize homes along the Thomas River, using the power of eminent domain. The city and the New London Development Corporation plan to replace a “faded” residential neighborhood with an office building, a hotel, new residences, and a pedestrian “riverwalk.” The project is to be built and leased by private developers, and is intended to take advantage of a nearby $350 million research center built by the Pfizer pharmaceutical company.

The owners of 15 homes in the Fort Trumbell neighborhood of New London resisted the city’s efforts to purchase their property–including one woman who was born in her house 87 years ago and lived there ever since.

In November 2000, the city condemned the properties. The homeowners went to state court, arguing that the taking violated the Fifth Amendment. The power of eminent domain, the plaintiffs argued, was intended only for clearly public purposes, such as roads, bridges, schools, and railroads–not hotels and office parks.

Last year, the Connecticut Supreme Court upheld the right of New London to condemn the houses, and the United States Supreme Court agreed. Justice John Paul Stevens wrote that “promoting economic development is a traditional and long-accepted function of government.” He pointed to earlier Supreme Court cases that have justified the use of eminent domain to redevelop blighted neighborhoods.

In a biting dissent, Justice Sandra Day O’Connor argued that “the words ‘for public use’ do not realitically exclude any taking, and thus do not exert any constraint on the eminent domain power.” Justice O’Connor also noted, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.”

O’Connor also noted that the decision favors the powerful over the powerless, and the rich over the poor: “The specter of condemnation hangs over all property,” she avowed. “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.”

Fortunately, a number of states already have restrictions on these legalized land grabs. The Arizona Constitution states that “private property shall not be taken for private use.” At least eight states–Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington–already forbid the use of eminent domain for economic development unless it is to eliminate blight. Nine state supreme courts (including those in Illinois, Michigan, and Washington) have prohibited the use of eminent domain simply to generate additional jobs and taxes.

The Supreme Court’s decision in Kelo v. City of New London is one of its classic mistakes, ranking with Scott v. Sanford (1857), which sanctioned slavery, and Plessy v. Ferguson (1896), which sanctioned “separate but equal.” Fortunately, both cases were eventually overturned. Kelo v. City of New London deserves the same fate.

Ted Rueter is an assistant professor of political science

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