Magazine | August 15, 2016, Issue

Unjust Takings

The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, by Ilya Somin (Chicago, 336 pp., $30)

‘I happen to agree with it 100 percent.” That was Donald Trump, speaking to Fox News anchor Neil Cavuto several months ago. The “it” in question was Kelo v. City of New London, a 2005 decision in which the U.S. Supreme Court gave its blessing to a local government’s seizure of private homes so that commercial-real-estate developers could bulldoze them and build something in their place in the name of “economic development” — leading, the city hoped, to higher tax revenues.

It is no wonder Trump loves the Kelo ruling. As a real-estate developer who has ingratiated himself with local authorities who can serve his interests, he has exploited an expansive definition of eminent domain — traditionally, the power of government to force the sale of private property for public use — for his own projects. Just ask Vera Coking, who fought the State of New Jersey’s effort to seize her home in Atlantic City and turn it over to Trump for a limo parking lot next to his Trump Plaza casino-hotel.

Vera Coking won her case in a New Jersey court. Not so fortunate were Susette Kelo and a half dozen other homeowners in the Fort Trumbull neighborhood of New London, Conn. They were swept up in an ambitious “redevelopment” project near a former naval installation, a project that local authorities evidently hoped would become a new corporate home for the Pfizer pharmaceutical corporation, which would be attracted by a wholly new mix of office buildings, conference and hotel facilities, and upscale housing. Most of the owners of the desired properties consented to sell their properties, however reluctantly. Kelo and the others who resisted fought their case all the way to the Supreme Court, and lost in a 5–4 squeaker, whose details, legal implications, and aftermath are comprehensively treated by Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University, in his aptly titled new book, The Grasping Hand.

The case turned on the question of what “public use” means in the Fifth Amendment clause reading, “Nor shall private property be taken for public use, without just compensation.” Somin never quite explains how natural it is that this clause, with its conjunction “nor,” should be placed immediately after the clause that says no person “shall be deprived of life, liberty, or property without due process of law.” There was already, at the time of the Founding, a well-established understanding that no “due process of law” could compel the direct transfer of property from one owner to another — even with compensation, let alone without.

From a general legal principle that particular property owners shall not be directly dispossessed even by government decree, the power of eminent domain carves out an exception when the property is fairly paid for and put to “public use,” either owned thereafter as government property (e.g., as a road, park, courthouse, etc.) or, if in private hands, used in such a way as to serve or benefit the community (as in a private grist mill, railroad, or gas pipeline).

Somin thoroughly explains the unfortunate expansion of the “public use” requirement that took hold by the mid 20th century. In its 1954 ruling in Berman v. Parker, the Supreme Court upheld a scheme that, in Somin’s words, “forcibly displaced some five thousand African Americans and transferred the property they lived on to white real-estate developers,” in the name of “alleviating urban ‘blight.’” In Berman, the Court unanimously deferred to legislative judgment of what constitutes “public use.” With “blight” understood as a public evil, and the transfer of blighted property to new owners who will improve it understood as a public good, all that is necessary is to say that whatever serves the public good, however understood by those charged with seeking it, is a “public use” that can justify the property’s condemnation and seizure through eminent domain.

From “blight,” the Court moved on, to the breaking up, 30 years later, of a landed “oligopoly,” in Hawaii Housing Authority v. Midkiff (1984). Here the seizure of great tracts of land, concentrated in the hands of a few owners, was held to be constitutional simply by virtue of its planned future resale to former tenants. Midkiff too was a unanimous decision, with the opinion by Justice Sandra Day O’Connor offering a capacious understanding of “land reform” as satisfying the public-use requirement.

Few people in comfortable circumstances will notice the plight of poor city dwellers thrown out of their homes by a “blight” designation, and the details of the Midkiff case did not attract much attention in the rest of the country. But the Kelo case presented something different. Here were modest but well-kept homes in a decidedly unblighted neighborhood — not run-down tenements owned by slumlords or great estates whose few owners dominated an entire community’s market in land. Here the notion of public-good-as-public-use would have to be stretched to include nothing more justifiable than the intersecting ambitions of local developers (to turn a profit) and local public officials (to augment their treasury with increased tax revenue). Whatever one might say about whether “economic development” put these local properties to better use, it is not plausible to call the resulting transfer from private owner A to private owner B a public use.

The good news, then, if we may call it that, is that Kelo was decided not unanimously but only over the objections of very strong dissents by Justices O’Connor (joined by Rehnquist, Scalia, and Thomas) and Thomas (writing for himself alone). Their cogent arguments about the almost-anything-goes approach to the public-use requirement taken by Justice John Paul Stevens, in his majority opinion, helped to fan the flames of public outrage that erupted in response to the ruling. In the decade since Kelo, public awareness of eminent-domain abuse has increased dramatically, and some states have taken positive steps, either in their legislatures or through popular referenda, to rein in this often destructive power.

And the Kelo lawsuit (along with the subsequent campaign to reverse it or at least to contain its effects) was itself made possible only through the efforts of public-interest litigators working pro bono, in this case the lawyers of the Institute for Justice (IJ). Somin rightly praises their research, their development of compelling legal arguments, and their persistence on behalf of clients of modest means who would otherwise have been unable to sustain the costs of years of litigation. It’s a model that was pioneered in the last century by the ACLU and the NAACP but that has more recently flowered in specialized advocacy organizations on the conservative and libertarian side, including the IJ, the Alliance Defending Freedom, the Becket Fund for Religious Liberty, and the Pacific Legal Foundation. There are times when litigation shops such as these can seem like people who have hammers (in this case, lawsuits claiming rights) in their hands and see a world full of nails. But many times a nail is decidedly a nail, and a hammer is just the thing.

The Grasping Hand is part journalism, part jurisprudence, and part public-policy analysis. Somin demonstrates how powerful the arguments against Kelo are from any originalist standpoint in constitutional law, and even how powerful they are from several of the most prominent perspectives that might be taken of a “living Constitution.” Despite all the stated goals of developers and local governments, property seizures for private development ventures frequently produce more harm than good, with costly displacements, homeowners receiving less compensation than they would willingly accept in a free market, jobs that were promised not materializing in the promised numbers, distortions of the policymaking process through rent-seeking behavior, and the exacerbation of class inequalities.

On virtually any measure of justice, such uses of eminent domain are dubious at best. And that’s when they actually work out more or less as intended. In his discussion of the Fort Trumbull case, Somin shows the real human costs to Susette Kelo and the other homeowners there — and the disastrous results of the aborted development project, which has left behind only a wasteland inhabited by stray cats.

And what of Kelo’s aftermath? Ten years on, as Somin shows in copious detail, the record of reform is mixed. The people, the legislatures, and the judiciaries of some states — but by no means all — have undertaken by referendum, legislation, or interpretation of state takings clauses to constrain the ways in which property may be seized in the name of a “public use.” Some of these efforts have made a substantial difference, others only a marginal one, still others hardly any difference at all.

Throughout this skillfully assembled book, Somin has his cards face-up on the table. In his view, not only an “economic development” but even a more restrictive “blight” rationale for the transfer of property from owner A to owner B is a violation of the Constitution. But he is scrupulously fair throughout to every constitutional perspective on these questions, and scrupulous too in his weighing of every policy variable, every interest at stake, and every measure of reform that might be taken. The story of the use and abuse of eminent domain is an unfinished one. But this is the book for understanding the story so far.

– Mr. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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