CJE Kelo

Though it is sometimes easy to forget, constitutional cases have real-world consequences for the lives of real people.  When judges abdicate their responsibilities, the consequences for individuals are frequently dire—homes and livelihoods are destroyed, voices are censored, and victims are left with no meaningful recourse.  But the results of judicial engagement are equally important.  When judges properly engage with the facts and the law of each case, there are direct benefits for individual rights—and a striking absence of the sorts of dire consequences often promised by the proponents of judicial abdication.

Kelo v. City of New London

CONTEXT:  In 1997, Susette Kelo purchased and lovingly restored her little pink house where the Thames River meets the Long Island Sound in the Fort Trumbull area of New London, Conn.  She enjoyed the view from her windows and the company of her neighbors.  Tragically, the city of New London liked the view as well—and it could do without the neighbors.

In 1998, pharmaceutical giant Pfizer built a plant next to Fort Trumbull and the city determined that someone else could make better use of the land than the Fort Trumbull residents. The city handed over its power of eminent domain—the ability to take private property for public use—to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development.  As the Fort Trumbull neighbors found out, when private entities wield government’s awesome power of eminent domain and can justify taking property with the nebulous claim of “economic development,” all homeowners are in trouble.

The fight over Fort Trumbull eventually reached the U.S. Supreme Court in 2005, where the Court, in one of the most controversial rulings in its history, held that economic development was a “public use” under the Fifth Amendment to the U.S. Constitution.  Under the Court’s reading of the Constitution, the only thing the government needed to do in order to take away someone’s property was assert that it wanted to give the property to someone else who might—might—make more money and pay more taxes.  It was literally true that any Motel Six could be taken and handed over to build a Ritz Carlton, and anyone’s home could be taken and handed over to someone who promised they would build a bigger one.

CONSEQUENCE:  The Kelo decision had two results, one for the Fort Trumbull neighborhood, and another for the country as a whole.  In Fort Trumbull, Susette and her neighbors were evicted from the neighborhood they knew and loved, and in their place the city built . . . nothing.  Indeed, more than five years after the Supreme Court’s decision authorizing New London’s land grab, Fort Trumbull remains a brownfield, a silent monument to inadequate judicial supervision of overzealous local officials.  On a national level, however, the Kelo case educated Americans about the dangers of eminent domain abuse and led to an unprecedented public backlash.  Forty-three states changed their laws in the wake of the decision to make Kelo-style takings more difficult, and the battle to end eminent domain abuse continues to this day.