Case of Kelo v. New London

Kelo vs. New London

There are two dissenting opinions written concerning the Kelo vs. New London case; one written by Justice O'Connor and the second one written by Justice Thomas. Each of these dissenting opinions offers a unique look at why the court should have found for Kelo instead of against Kelo. This case, like many cases, hinges on the interpretation of the Constitution. Interpreting the Constitution, for the most part, involves a comprehension and understanding of what exactly the Founding Fathers meant when they wrote the Document. In this case the comprehension and understanding concerns the use of the phrase "public use."

A 2005 law review article states "the confusion in the lower courts arises from takings that do not directly achieve the government's purpose -- takings that involve a separate, unregulated private party to whom the property flows" (Christensen, 2005, p. 1669). The real issue, according to Trent Christensen (author of the article), is that the courts interpreted the public use eminent domain clause as meaning public benefit, not public use. This is a huge change to previous courts and rulings. What the Supreme Court did in this case was opened the door to allow the government of any municipality, city, state or the nation to legally 'take' a private individual's property with no recourse if it can be justified by public benefit. This is wrong, and should be revisited. This paper agrees with Christensen when he states "the Supreme Court should revisit this precedent and apply a heightened scrutiny in order to ensure the protection and the security of property" (Christensen, p. 1712).

This paper is not the only entity that believes the Supreme Court decided incorrectly in the Kelo case.

Some state governments believe the exact same thing and have responded to Justice John Paul Stevens remarks that there is nothing keeping state legislatures from enacting their own interpretation of the eminent domain clause. One such state is the state of Tennessee. The Tennessee General Assembly enacted Public Act 865 in response to Justice Stevens invitation. The Act reformed eminent domain in very specific terms. Most importantly the Act went about "establishing a clear legislative intent concerning when the government is permitted to use eminent domain" (Griswold, 2007, p. 14). Tennessee has it right. The only problem with the eminent domain reforms is that they may not have gone quite far enough. Griswold points out that "a city could argue that an inner city block, which is riddled with crime and poverty is detrimental to the safety, health, morals or welfare of the community" which would mean that the city could then take private property, hand it do a developer to develop, and the private property owner would have no recourse. At least Tennessee and a number of other states are cognizant of the fact that there has to be a pretty good reason for employing the eminent domain procedure. It seems that the Supreme Court has no such cognizance.