Books, Constitutional Law, Supreme Court

Kelo v. City of New London And The Limits of Eminent Domain: An Interview With Ilya Somin

Just how bad was the Supreme Court's ruling in Kelo? Very bad, as Professor Ilya Somin explains in his new book.

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Later this month, on June 23, Kelo v. City of New London will celebrate its tenth anniversary. But it’s not exactly a happy birthday; the Supreme Court’s 5-4 decision in Kelo has triggered widespread criticism and political backlash.

Professor Ilya Somin, a professor at George Mason University School of Law and prominent blogger over at the Volokh Conspiracy, just published The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain (affiliate link). I recently caught up with Professor Somin, a friend of mine since our law school days together, to talk about his interesting and important new book, published by the University of Chicago Press.

ATL: Congratulations on your latest book, Ilya! Can you give our readers the “headnotes version” — a brief sense of what it’s about?

IS: This is the first book by a legal scholar about Kelo v. City of New London, one of the most controversial decisions in the modern history of the Supreme Court. Almost exactly ten years ago, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court concluded that the transfer of condemned land to private parties for “economic development” is constitutional – even if the government cannot prove that the expected development will actually happen. The majority decided that virtually any potential public benefit counts as a public use.

ATL: And what, in a nutshell, is your take on Kelo?

IS: My book explains why Kelo was a terrible mistake from the standpoint of the most widely accepted versions of both originalism and living constitutionalism. I also discuss how economic development and “blight” condemnations of the sort upheld in Kelo tend to destroy far more economic value than they create, and are especially harmful to the poor and ethnic minorities. Far from generating beneficial development, the land condemned in the Kelo case itself lies empty to this day – used only by feral cats.

In the second half of the book, I consider the successes and failures of the enormous political backlash generated by Kelo. Some 45 states passed eminent domain reform laws in the wake of the decision – more state legislation than enacted in response to any other Supreme Court decision in American history.

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ATL: Could the flurry of reform legislation post-Kelo be defended as, well, exactly how our democracy and federalism are supposed to work? The Court issues a ruling based on legal doctrinal grounds, and then state legislatures pass laws to avert bad policy consequences?

IS: Many defenders of the Kelo decision have argued just that, including Justice John Paul Stevens, the author of the majority opinion. The problem is that much of the post-Kelo legislation only pretends to avert the bad policy consequences rather than actually does so. In more than half the states that adopted post-Kelo reforms, the same kinds of abusive takings are still permitted to continue under other names. Most commonly, a state will ban “economic development” takings that transfer property to private parties, but still allow them if the area in question is declared to be “blighted.” And they define blight so broadly that pretty much any area qualifies.

There has undoubtedly been real progress since the Kelo decision in many states. But that doesn’t justify the Court’s failure to enforce an important constitutional right. The whole point of having a right embedded in the Bill of Rights and applied against the states is to prevent all state governments from undercutting it, not just some of them. If the Supreme Court refused to meaningfully protect First Amendment rights or Fourth Amendment rights, and more than half the states adopted legislative fixes that still left those rights in jeopardy, that would not be a success for federalism and democracy. It would be a serious failure. The same point applies to property rights protected by the Fifth Amendment.

A few other federalism arguments have also been raised in defense of Kelo. I cover them in some detail in the book.

ATL: Looking to the future, where do we go from here? In the book, you argue in favor of overruling Kelo on both originalist and “living Constitution” grounds. What about the broader issue of economic-development takings — can they be reformed, or should they be banned?

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I think there is a substantial likelihood that Kelo will eventually be overruled or at least limited. Historical evidence shows that closely divided and heavily criticized Supreme Court decisions are the ones most likely to be reversed. Kelo was a 5-4 nail-biter, and has generated more widespread opposition than almost any other modern Supreme Court decision. In addition, the case fits the Court’s own criteria for overruling precedent very well (though the justices don’t always follow those criteria consistently). One of them is whether the ruling has been subjected to “substantial and continuing criticism,” which undeniably describes Kelo.

The quality of the original decision’s reasoning is also relevant. Justice John Paul Stevens has even admitted that his Kelo majority opinion was partly based on an “embarrassing to acknowledge” misunderstanding of previous precedent (though he continues to believe that he got the bottom-line result correct).

Even if Kelo does survive for a long time to come, it has still rekindled debate over public use, and broken the seeming consensus over constitutional limits on eminent domain. Before Kelo, most experts believed that the issue had been definitively settled in favor of a broad definition of “public use” under which the government can condemn property for almost any reason it wants. Thanks to the controversy generated by Kelo, there is now an active debate over the issue among both experts and laypeople.

Academics have put forward a variety of proposals for mitigating the harm caused by blight and economic development takings without categorically banning them. An entire chapter of the book is devoted to them. I think some of these ideas have merit (for example, increasing the compensation paid to owners of condemned property). But none are likely to be nearly as effective as a categorical ban in protecting both property owners and the general public against abusive takings. And none offer anything close to full protection for the constitutional rights embedded in the Public Use Clause.

ATL: Thanks for taking the time to share your new book with us, Ilya, and congrats again!

IS: Thanks to you and Above the Law for doing this interview, and for your many valuable contributions to the legal blogosphere!

The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain [Amazon (affiliate link)]

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