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The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain
In 2005, 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 ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution - even if the government cannot prove that the expected development will ever actually happen. The Court's decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and "blight" condemnations are unconstitutional under both originalist and most "living constitution" theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city's poorly conceived development plan ultimately the condemned land lies empty to this day, occupied only by feral cats.
The Supreme Court's unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and "blight" condemnations are unconstitutional under both originalist and most "living constitution" theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city's poorly conceived development plan ultimately the condemned land lies empty to this day, occupied only by feral cats.
The Supreme Court's unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.
336 pages, Hardcover
First published May 28, 2015
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About the author
Ilya Somin
21 books21 followersProfessor at the George Mason University School of Law, an adjunct scholar at the Cato Institute, a blogger for Volokh Conspiracy, and a former co-editor of the Supreme Court Economic Review (2006 to mid-2013).
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Displaying 1 - 5 of 5 reviews
July 21, 2015
"Property must be secured or liberty cannot exist." -John Adams
This is not only a well-researched, well-argued piece of scholarship on a deeply misguided Supreme Court decision. It's also a captivating acount of the people and stories behind the 2005 case of Kelo vs. City of New London, in which the Supreme Court upheld a Connecticut town's taking of homes in an area to be used for "economic development," including the construction of upscale housing, a five-star hotel, office space, and--perhaps most telling of the political forces at work in the taking--a new office location for pharmaceutical giant Pfizer. Somin compassionately chronicles the lives displaced by the late 1990s taking. The Cristofario family had lived in their home since 1972 when they moved into it just after having their old home taken by eminent domain. Matthew Dery owned four houses in the area, in one of which his elderly parents lived. Byron Athenian had lived in the same house since the 1980s with his wife and three children, all of whom had presumably planted important childhood roots and made friends in the community.
This was the community whose longstanding ties were severed when the Supreme Court handed down its 2005 decision in Kelo vs. City of New London. Justice Stevens, writing for the majority joined by Justices Ginsburg, Breyer, Souter, and Kennedy, wrote that the taking of property from private entity A to private entity B in the name of a goal as vapid as "economic development" did in fact constitute a permissible public use under the 5th Amendment. What's so important--and frightening--about the Kelo case is that it was not a taking for the direct use by the public. The Fort Trumbull neighborhood was not uprooted to create a public road, a public school, or a public park. It was taken by private individuals to give to other wealthier, more politically connected private individuals.
Stevens's decision argued that public use did not require literal use. In other words, "public use" does not actually mean "public use." This decision relied on two previous 5th Amendment takings cases which both established a policy of excessive deference to the legislature--Berman v. Parker and Hawaii Housing Authority v. Midkiff--and a host of earlier 20th century decisions which--sadly unbeknownst to Justice Stevens at the time--were in fact 14th Amendment due process cases and not actually 5th Amendment takings cases. Luckily, Stevens did in fact narrow the ultradeferential standard of Berman and Midkiff by noting that "pretextual takings," where there is a pretext for the purpose of conferring a private benefit, are unconstitutional. Justice Kennedy stressed a similar point in his concurrence, noting the dangers that are present when the government plays favorites with the politically connected elite. State courts have since used these nuggets to give some teeth to the ban on pretextual takings, but only with limited success. Apparently--and unfortunately--Pfizer did not count as the private entity which benefitted primarily from this taking since the primary purpose was the public goal of "economic development."
Justices Rehnquist, O'Connor, Scalia, and Thomas dissented in two opinions. O'Connor's opinion argued that if the state can take any property by arguing--not even proving--that it will lead to economic development, the takings clause of the 5th Amendment no longer has any real effect. In her own words, "the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Thomas's dissent argues that if the Framers had a broader idea of the word "use" in mind, they would have used a broader term like "general welfare." Thomas also notes keenly that these takings have a disproportional impact on the poor, minorities, and the politically unpowerful. He also points out that the Court has been diligent in keeping the government out of people's homes when police officers don't have a warrant, but passive in the far more intrusive step of tearing their homes down.
Somin's main argument is that both originalism and a large number of different flavors of "living Constitutionalism" all arrive at conclusions contrary to the one reached by the Kelo majority. Making the originalist case, he points out the strong Lockean influence of property as an extension of one's very personhood that was dear to the Framers. He also cites countless cases from the time of the early Republic as well as the post-Civil War era when the 5th Amendment was incorporated to the states. Somin could have also pointed to the key role that James Otis played in igniting the American Revolution when he challenged the legality of British writs of assistance (though, to be clear, that ws an issue more of searches and seizures than eminent domain). In making a whole host of living Constitution arguments, Somin contends that the representation-reinforcement view, which argues that courts should use judicial power to represent otherwise underrepresented groups, ought to reject the Kelo decision since it puts the poor, minorities, and the unpowerful at the most risk. Likewise, Dworkinian theory, which claims that ambiguous clauses should look to various formulations of moral philosophy for clarity. For example, utilitarianism would refute the decision since the benefits of these takings are usually far overshadowed by their costs. Egalitarian notions of justice would also reject the decision.
Somin also spends a great deal chronicling the strong public backlash against the Kelo decision. Since it was made, 45 states have passed eminent domain reform laws. Some of these have been effective, but many of them, unfortunately, still leave the government with ample leeway for takings in the name of "economic development" or alleviating "blight." Somin also points out the judicial reaction to Kelo which hs attempted to use the paper-thin footholds provided by the Kelo majority and Kennedy's concurrence as well as state constitutions to provide more protection to property owners.
Today, the Fort Trumbull neighborhood sits empty, undeveloped, and home to no one other than a colony of feral cats after the plans for Pfizer's headquarters and the other developments fell through. This leaves me with two general thoughts about the Kelo episode. First, this case underscores a philosophical divide in American politics. The questions we confront today can be answered by turning to free people making free choices and organically building their natural communities. Or they can be answered by turning to the planning mechanisms of government. As Burke would be the first to argue, the latter course of action comes with unique costs. No governmment will have enough information about the complete preferences of its citizens, the unintended consequences of its actions, or the damage to communities of its complex schemes. Additionally, the government is never guided by the pure philosopher-kings for which Plato pined. It is always saddled with special interests and deep pockets who seek to tilt the table their way. The more we choose the latter of the two above courses of actions, the more we maximize these costs that it creates.
Second, the Kelo case also underscores the general danger of the "rational basis" test. Too many important rights can be ridden over by the state as long as they quickly rationalize a basis and come up with any old reason under the sun for its actions. We've adopted an almost bulletproof presumption of constitutionality in these cases and it has come at the cost of losing a great deal of one of our most important--if not the most important--freedoms: the freedom to use our own labor, our own time, our own energy, and our own bodies to attain our own property.
This is not only a well-researched, well-argued piece of scholarship on a deeply misguided Supreme Court decision. It's also a captivating acount of the people and stories behind the 2005 case of Kelo vs. City of New London, in which the Supreme Court upheld a Connecticut town's taking of homes in an area to be used for "economic development," including the construction of upscale housing, a five-star hotel, office space, and--perhaps most telling of the political forces at work in the taking--a new office location for pharmaceutical giant Pfizer. Somin compassionately chronicles the lives displaced by the late 1990s taking. The Cristofario family had lived in their home since 1972 when they moved into it just after having their old home taken by eminent domain. Matthew Dery owned four houses in the area, in one of which his elderly parents lived. Byron Athenian had lived in the same house since the 1980s with his wife and three children, all of whom had presumably planted important childhood roots and made friends in the community.
This was the community whose longstanding ties were severed when the Supreme Court handed down its 2005 decision in Kelo vs. City of New London. Justice Stevens, writing for the majority joined by Justices Ginsburg, Breyer, Souter, and Kennedy, wrote that the taking of property from private entity A to private entity B in the name of a goal as vapid as "economic development" did in fact constitute a permissible public use under the 5th Amendment. What's so important--and frightening--about the Kelo case is that it was not a taking for the direct use by the public. The Fort Trumbull neighborhood was not uprooted to create a public road, a public school, or a public park. It was taken by private individuals to give to other wealthier, more politically connected private individuals.
Stevens's decision argued that public use did not require literal use. In other words, "public use" does not actually mean "public use." This decision relied on two previous 5th Amendment takings cases which both established a policy of excessive deference to the legislature--Berman v. Parker and Hawaii Housing Authority v. Midkiff--and a host of earlier 20th century decisions which--sadly unbeknownst to Justice Stevens at the time--were in fact 14th Amendment due process cases and not actually 5th Amendment takings cases. Luckily, Stevens did in fact narrow the ultradeferential standard of Berman and Midkiff by noting that "pretextual takings," where there is a pretext for the purpose of conferring a private benefit, are unconstitutional. Justice Kennedy stressed a similar point in his concurrence, noting the dangers that are present when the government plays favorites with the politically connected elite. State courts have since used these nuggets to give some teeth to the ban on pretextual takings, but only with limited success. Apparently--and unfortunately--Pfizer did not count as the private entity which benefitted primarily from this taking since the primary purpose was the public goal of "economic development."
Justices Rehnquist, O'Connor, Scalia, and Thomas dissented in two opinions. O'Connor's opinion argued that if the state can take any property by arguing--not even proving--that it will lead to economic development, the takings clause of the 5th Amendment no longer has any real effect. In her own words, "the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Thomas's dissent argues that if the Framers had a broader idea of the word "use" in mind, they would have used a broader term like "general welfare." Thomas also notes keenly that these takings have a disproportional impact on the poor, minorities, and the politically unpowerful. He also points out that the Court has been diligent in keeping the government out of people's homes when police officers don't have a warrant, but passive in the far more intrusive step of tearing their homes down.
Somin's main argument is that both originalism and a large number of different flavors of "living Constitutionalism" all arrive at conclusions contrary to the one reached by the Kelo majority. Making the originalist case, he points out the strong Lockean influence of property as an extension of one's very personhood that was dear to the Framers. He also cites countless cases from the time of the early Republic as well as the post-Civil War era when the 5th Amendment was incorporated to the states. Somin could have also pointed to the key role that James Otis played in igniting the American Revolution when he challenged the legality of British writs of assistance (though, to be clear, that ws an issue more of searches and seizures than eminent domain). In making a whole host of living Constitution arguments, Somin contends that the representation-reinforcement view, which argues that courts should use judicial power to represent otherwise underrepresented groups, ought to reject the Kelo decision since it puts the poor, minorities, and the unpowerful at the most risk. Likewise, Dworkinian theory, which claims that ambiguous clauses should look to various formulations of moral philosophy for clarity. For example, utilitarianism would refute the decision since the benefits of these takings are usually far overshadowed by their costs. Egalitarian notions of justice would also reject the decision.
Somin also spends a great deal chronicling the strong public backlash against the Kelo decision. Since it was made, 45 states have passed eminent domain reform laws. Some of these have been effective, but many of them, unfortunately, still leave the government with ample leeway for takings in the name of "economic development" or alleviating "blight." Somin also points out the judicial reaction to Kelo which hs attempted to use the paper-thin footholds provided by the Kelo majority and Kennedy's concurrence as well as state constitutions to provide more protection to property owners.
Today, the Fort Trumbull neighborhood sits empty, undeveloped, and home to no one other than a colony of feral cats after the plans for Pfizer's headquarters and the other developments fell through. This leaves me with two general thoughts about the Kelo episode. First, this case underscores a philosophical divide in American politics. The questions we confront today can be answered by turning to free people making free choices and organically building their natural communities. Or they can be answered by turning to the planning mechanisms of government. As Burke would be the first to argue, the latter course of action comes with unique costs. No governmment will have enough information about the complete preferences of its citizens, the unintended consequences of its actions, or the damage to communities of its complex schemes. Additionally, the government is never guided by the pure philosopher-kings for which Plato pined. It is always saddled with special interests and deep pockets who seek to tilt the table their way. The more we choose the latter of the two above courses of actions, the more we maximize these costs that it creates.
Second, the Kelo case also underscores the general danger of the "rational basis" test. Too many important rights can be ridden over by the state as long as they quickly rationalize a basis and come up with any old reason under the sun for its actions. We've adopted an almost bulletproof presumption of constitutionality in these cases and it has come at the cost of losing a great deal of one of our most important--if not the most important--freedoms: the freedom to use our own labor, our own time, our own energy, and our own bodies to attain our own property.
April 30, 2020
Pro 1. The author despite clearly believe the court ruling and eminent domain, in general, to be wrong in most cases. He strives to be as objective as possible... acknowledging when an alternative to the eminent domain he presents has limited evidence of working. He also shows how a living constitutionalist and an originalist would feel about the case which is very objective. Lastly, the author in the concluding sections of this book acknowledges that his position on this case has weaknesses and "question marks" surrounding it.
2. The author is brilliant and very persuasive he navigates every argument and every potential or existing counter-argument to his arguments with ease that you rarely see in legal analysis books.
3. I like how the book doesn’t just cover the case itself but covers the history of eminent domain in its entirety. The author also covers the reaction of the Kelo ruling, not just the legal jargon. The author also covers the Eminent domain on the State and local levels.
Cons:
1. The only con I have is that at times this book wasn't an entertaining read....and a book like "we the corporations" shows that it's possible to make a book covering Court Cases entertaining.
2. The author is brilliant and very persuasive he navigates every argument and every potential or existing counter-argument to his arguments with ease that you rarely see in legal analysis books.
3. I like how the book doesn’t just cover the case itself but covers the history of eminent domain in its entirety. The author also covers the reaction of the Kelo ruling, not just the legal jargon. The author also covers the Eminent domain on the State and local levels.
Cons:
1. The only con I have is that at times this book wasn't an entertaining read....and a book like "we the corporations" shows that it's possible to make a book covering Court Cases entertaining.
March 24, 2016
Although Ilya Somin has a bias, he provides a fair analysis of a Supreme Court decision that has raised a great deal of emotion and often been distorted. In fact, as he shows, the decision was less about the Takings Clause as a whole than about the Public Use aspect of that clause. The only negative about the book is that it fails to adequately place the bringing of the case in the context of a broader attempt to chip away at judicial decisions regarding the Takings Clause.
March 30, 2016
Ilya Somin knocks it out of the park with this authoritative work on the impact and fallout of the Kelo v. City of New London decision by the US Supreme Court: identifying, among other things, why the application of the takings power across the United States (whereby the government takes property from one person (usually poor) and gives to another person (usually rich) and thereby wrecks havoc on the lives of average Americans all for the benefit of a select and well connected few. The book is comprehensive and does a good job of tracing the efforts, undertaken in the aftermath of the Kelo decision, to redress the problem at the level of state legislatures—providing something of an object lesson in how a wrong-headed judicial decision can galvanize the political apparatus to make a serious attempt at reforming the law. Unfortunately, as the author points out in fine detail, many of these efforts that grew out of Kelo have failed to address many of the primary problems that lay at the heart of mis-use and abuse of the takings power. Nevertheless the Kelo story offers a useful lesson in how groups might go about leveraging a bad decision to bring about reform at the political/legislative level.On a side note, for future editions, it could prove interesting to consider the comparative implications of this story vis-á-vis other common law jurisdictions, such as in Canada (beyond those already contemplated to a limited extent by the author, such as his referencing analgoues from other common law judicial decisions).
Highly recommend this book to anyone interested in thinking seriously about what needs to be done, and what can be done, to address this endemic problems concerning US takings law across the American polity.
Highly recommend this book to anyone interested in thinking seriously about what needs to be done, and what can be done, to address this endemic problems concerning US takings law across the American polity.
September 27, 2016
Well written book that comprehensively covers a relatively dry but important subject and makes it understandable and relevant.
Displaying 1 - 5 of 5 reviews