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Kelo v. New London and Eminent Domain
When the United States Supreme Court heard oral arguments in the case of Kelo v. City of New London, Connecticut in February of 2005, the issue legally speaking was a seemingly straightforward matter of Fifth Amendment jurisprudence. What was at stake as a point of Constitutional law was the last clause of the Fifth Amendment, generally referred to as the "takings clause." The actual wording within the Bill of Rights is just twelve words long: "nor shall private property be taken for public use, without just compensation." The government has an enumerated constitutional right, therefore, of what is termed eminent domain, and the only legal issue here was one of interpretation of those twelve words. To couch what was at stake in Kelo in such a deliberately bland and legalistic manner, though, utterly understates the extent of public outcry and outrage the Supreme Court's decision in Kelo would occasion when the decision, written by Justice John Paul Stevens, was handed down four months later. In part, the public outcry was occasioned because Susette Kelo made a particularly sympathetic media story: she refused to yield up her "little pink house" in New London's downtown Fort Trumbull neighborhood to the city's particularly broad interpretation of "public use." At the time of oral arguments on February 22, 2005, Dahlia Lithwick then writing for Slate gave a summary of what constituted "public use" in Kelo:
In the working-class neighborhood of Fort Trumbull, Conn., the local government has some big plans. Not a monorail, but adjacent to and complementing a brand new $300 million research facility for the pharmaceutical giant, Pfizer, there would be condos, health clubs, a luxury hotel, shops, and other assorted mega-stuff. Most of the folks in town agreed to sell, but seven families, owning 15 homes, refused. They like their crumbly Victorians. So when the state tried to condemn their property, they sought injunctions. Traditionally, the "public use" requirement in eminent domain cases allowed the local government to condemn property to build railroads, or bridges, or highways. But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use" could include condemning blighted neighborhoods to build better ones. Fort Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981 -- razing hundreds of homes to build a GM plant -- many jurisdictions have insisted that increased tax revenues and the prospect of new jobs was "public use" enough to justify nabbing land that subsequently became Costcos, shopping malls, and fancy office buildings. New York used eminent domain to improve Times Square and build the World Trade Center. The Connecticut Supreme Court agreed with New London that seizing homes for purposes of private economic development was permissible. The homeowners appealed. (Lithwick 2005).
The Supreme Court's decision was authored by the Nixon appointee John Paul Stevens, who was joined by the court's liberal wing in 2005, Justices Kennedy, Souter, Ginsberg and Breyer, and found in favor of New London's right to claim Susette Kelo's home under eminent domain. Those dissenting were Chief Justice Rehnquist, Justice Sandra Day O'Connor, and the court's paleoconservative-originalist phalanx of Scalia and Thomas. But the public condemnation of the decision was immediate, as was legislative response on the state level. However, six years after the Kelo decision, it is worth inquiring what effects is seems to have had. This survey will assess various interpretations of what the effects of Kelo have been, and to see if the "fallout," so to speak, has been as radioactive as the initial public response to the decision might have indicated.
The initial public outcry from intellectuals and members of the legal community, upon reading Stevens' decision in 2005, was quickly joined by journalists and members of the public, especially in response to what were seen as sudden reactions by state and local governments to take advantage of what seemed to be unusually broad powers now granted to them by the Supreme Court under the Fifth Amendment. Woodyard and Boggs in their 2009 survey of the public response -- or "outcry," to use the term they use -- to Kelo summarize:
Critics of Kelo were quick to seize upon reported local government actions, which they saw as abusive uses of eminent domain powers. For example, the Institute for Justice contended that the City of Freeport, Texas attempted to condemn waterfront shrimp processing companies in order to develop a marina mere hours after the Supreme Court rendered its judgment. Just two days later, the City of Boston also began the process for seizing waterfront properties. Officials from Newark, New Jersey told the press that but for the Kelo decision they would have abandoned plans for a downtown condo and retail project. (441)
It is first necessary to note that the Kelo decision found that economic improvement schemes meant that neighborhoods could be seized for eminent domain even if they did not constitute "blight" under the 1954 Berman ruling, thus granting a much broader power of eminent domain to state and local governments. Therefore the strongest reaction to this could largely be described as libertarian, of both left and right wing varieties. The term is particularly apropos because it was, in fact, a libertarian activist law firm, the "Institute for Justice" led by attorney Scott Bullock, that argued Susette Kelo's case before the Supreme Court. On the fifth anniversary of oral argument in February of 2010, Bullock himself issued a press release to mark the occasion, and more importantly to note that in some sense events had proved his initial dire warnings correct, at least in the specific case of Susette Kelo herself:
This past November (2009)…Pfizer announced it will close its New London research and development headquarters. This marks the end of an eminent domain error. New London created a redevelopment plan that gave land to Pfizer at a nominal cost and provided free environmental cleanup to the site. The plan also called for redevelopment of an area called Fort Trumbull, a working-class neighborhood adjacent to the Pfizer headquarters. It housed approximately 70 to 80 homes, as well as a few small businesses and an abandoned Navy base. The plan called for this area to be replaced by an upscale hotel, office buildings and new housing. This redeveloped area would "complement" the new Pfizer facility, leading to increased taxes and job growth for New London -- or so the city promised. The state agreed to provide $78 million for the project. Pfizer received an 80% tax abatement for 10 years. Keep in mind, when the five justices of the U.S. Supreme Court ruled against our clients -- holding that taking property for "economic development" does not violate the U.S. Constitution's Takings Clause -- the justices stressed that there was a plan in place, and that so long as lawmakers who looked to use eminent domain for someone's private gain had a plan, the courts would wash their hands. Now, nearly five years after the redevelopment scheme passed constitutional muster, the plant that was the magnet for the development is closing its doors just as its tax abatements expire. The very land where Susette Kelo's home once stood remains barren -- home to nothing but feral cats, seagulls and weeds. For years, the disastrous Fort Trumbull project will be Exhibit A in demonstrating the folly of government plans that involve corporate welfare and abuse eminent domain for private development. Hopefully, city officials, planners and developers will take the Fort Trumbull experience to heart and pursue revitalization efforts only through voluntary, not coercive, means. Until they do, IJ will stand with property owners nationwide to fight for what is rightfully theirs. (Bullock, 2010)
Bullock's summary is worth quoting at length, because his advocacy of Kelo's case in front of the Supreme Court was, in some sense, a work of activism, and his own assessment represents the generally libertarian interpretation of eminent domain (on both right and left) which was strongest in the "outcry." On the level of the initial drama which captured the attention of the media and the public, then, the fallout could not be worse for supporters of the Kelo decision, when Susette Kelo's house remains a vacant lot in mid-2011, some six years later. And Pfizer's actions bolstered the credibility of those who had claimed that essentially the Court had licensed local governments, on the same model that they offer tax incentives, to basically offer sacrifices of entire working class neighborhoods to appease fickle corporate monoliths who are likely in a globalized economy to pack up and move with absolutely no regard for the communities in which they temporarily base their operations.
However, it is important to note that the initial "outcry" was met with a flurry of legislation on the state level to respond specifically to Kelo by limiting its most extensively broad interpretation by statute. In a summary issued in 2007 by the National Conference of State Legislatures, Morandi breaks down the response into three different…[continue]
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