Sprankling, John G.

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University of the PacificScholarly CommonsMcGeorge School of Law Scholarly Articles McGeorge School of Law Faculty Scholarship2007Introduction: The Impact of Kelo v. City of NewLondon on Eminent DomainJohn G. SpranklingPacific McGeorge School of LawFollow this and additional works at: https://scholarlycommons.pacific.edu/facultyarticlesPart of the Property Law and Real Estate CommonsThis Article is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has beenaccepted for inclusion in McGeorge School of Law Scholarly Articles by an authorized administrator of Scholarly Commons. For more information,please contact mgibney@pacific.edu.Recommended Citation38 McGeorge L. Rev. 369Introduction: The Impact of Kelo v. City of New London onEminent DomainJohn G. Sprankling*When the Supreme Court held in Kelo v. City of New London' that a familyhome could be condemned and then conveyed to a private enterprise as part of aneconomic redevelopment project, protests erupted across the nation. Why?For centuries, the governmental power to take private property has been seenas an essential element of sovereignty. The Fifth Amendment imposes twoconstraints on this inherent power. Private property may be taken only for"public use" and upon payment of "just compensation., 2 Nineteenth-centurycourts interpreted the Public Use Clause as requiring the government or thepublic to physically use the property being taken; this "physical use" standardturned on the identity of the user.But the twentieth century presented new social and economic challenges. Assuburbs expanded with the post-World War II boom, the downtown areas ofmany large cities began to decay. The idea of "slum clearance" gainedpopularity: local government would develop an urban renewal plan, condemnland in blighted areas, and resell the property to private entrepreneurs who wouldconstruct new housing, businesses, and other projects consistent with the plan.The 1954 decision in Berman v. Parker3 signaled the Supreme Court's shiftto a new standard for defining "public use." There, a business owner asserted thatthe condemnation of his non-blighted store as part of a redevelopment project inthe District of Columbia did not meet the public use standard because it wasmerely a "taking from one businessman for the benefit of anotherbusinessman" 4-a taking of private property for purely private use. But the Courtrejected this claim, reasoning that the public use requirement was met becausethe land was taken for a legitimate public purpose: improving the quality ofhousing. In its decisions after Berman, the Court continued to use this "publicpurpose" standard to define the scope of "public use."Kelo raised a novel question: can government, consistent with the public userequirement, condemn a non-blighted, owner-occupied home as part of a city-approved economic revitalization project? By a five to four majority, the Courtfound that the plan "unquestionably serves a public purpose"5 because it wouldprovide new jobs, increase tax revenue, and generally revive the depresseddowntown area of New London, Connecticut. Refusing to second-guess thewisdom of the city council's approval, the majority opinion stressed the need to* Distinguished Professor and Scholar, University of the Pacific, McGeorge School of Law.1. 545 U.S. 469 (2005).2. U.S. CONST. amend. V.3. 348 U.S. 26 (1954).4. Id. at 33.5. Kelo, 545 U.S. at 484.2007 / Introductiondefer to local legislative judgments. Thus, for the majority, the decision was alogical application of the Court's modem public purpose jurisprudence.But the decision sparked sharp dissents from Justices O'Connor and Thomas.Justice O'Connor argued that the majority had misinterpreted Berman and itsprogeny by creating a new test that expanded the meaning of "public use" andthreatened all private property rights: "The specter of condemnation hangs overall property. Nothing is to prevent the State from replacing any Motel 6 with aRitz-Carlton, any home with a shopping mall, or any farm with a factory. 6 Inturn, Justice Thomas complained that the "public purpose" approach-fromBerman forward-violated both the most natural reading of the Public UseClause and the intent of the Framers. In effect, he advocated a return to thehistoric "physical use" standard.Kelo ignited a firestorm of public outrage-probably the most negativeresponse to any Supreme Court decision in recent years. Polls showed that morethan seventy percent of Americans in various states disagreed with the decision,7regardless of political affiliation; Democrats, Republicans, and independents allopposed Kelo with equal fervor.8 As a result, legislation to limit the Kelo holdingwas quickly adopted by most states and by the federal government.What explains this remarkable public outcry? The home has always occupieda special place in our legal culture. Just as the Third and Fourth Amendmentsensure privacy inside the home, the law has specially protected the home in manyother situations.9 As the Supreme Court observed in a 1980 decision, "the State'sinterest in protecting the well-being, tranquility, and privacy of the home iscertainly of the highest order in a free and civilized society."' Consistent withthis tradition, Americans generally expect that the law will safeguard their familyhomes.Kelo shocked the nation because it highlighted an unpleasant reality: undersome circumstances, the government may seize a home despite the owner'sobjections. Across the country, millions of Americans worried that their ownhomes might be taken. The theoretical risk of eminent domain-a vague conceptto most citizens-had suddenly become disturbingly real. In addition, ideologicalopposition appeared from both ends of the political spectrum. Conservativesviewed the decision as the most significant attack on private property rights in6. Id. at 503 (O'Connor, J., dissenting).7. See Daniel H. Cole, Why Kelo Is Not Good News for Local Planners and Developers, 22 GA. ST. U.L. REV. 803, 822-24 (2006) (collecting polling data from different states).8. Id. at 822.9. See D. Benjamin Barros, Home as a Legal Concept, 46 SANTA CLARA L. REV. 255 (2006); John Fee,Eminent Domain and the Sanctity of the Home, 81 NOTRE DAME L. REV. 783 (2006).10. Carey v. Brown, 447 U.S. 455, 471 (1980).McGeorge Law Review / Vol. 38decades; liberals saw it as a major threat to traditional privacy rights within thehome."Over the last two years, Kelo has generated continuing debate amonglawyers, law professors, and judges, as reflected in a number of law reviewarticles.'2 The three pieces in this collection offer helpful perspectives that willenrich this ongoing discussion.First, David L. Breau provides the first comprehensive analysis of JusticeThomas' Kelo dissent. This article is particularly valuable because Thomas is theforemost advocate of the historic "physical use" standard, which he views asreflecting the Framers' original intent. Accordingly, Breau considers the validityof Thomas' textual analysis of the phrase "for public use," which is based oncitations to a founding-era dictionary and other sources; explores Thomas' use ofBlackstone as common law background; and questions Thomas' review of earlyeminent domain practices of the states. Ultimately, Breau rejects Thomas' view,finding that the Framers' intent was unclear.Moving from the merits of the Kelo decision to potential responses, ElisabethSperow argues that increased political accountability is the remedy for abuse ofthe eminent domain power. Characterizing Kelo as a decision that reflects carefuljudicial restraint, not judicial activism, her article suggests that members of thepublic should participate more actively in the political processes leading toredevelopment approvals and other activities that give rise to eminent domain.Ultimately, elected representatives who make improper legislative judgmentsshould be held accountable at the ballot box.Finally, the Comment by Dale Orthner examines another possible response toKelo: increasing the amount of compensation paid to homeowners. He arguesthat payment of fair market value does not provide full compensation, in partbecause a home has non-economic value to its owner. Increasing the requiredcompensation to 150% of fair market value, he suggests, would both discouragegovernment from abusing the eminent domain power and reduce the incentive ofhomeowners to challenge condemnations.It is still too early to assess the legacy of Kelo. The decision may prove to bemerely a step in the evolution of the public purpose test. Or it may be atransitional case that leads to a new public use standard. At this point, one canonly predict that Kelo will remain controversial. The collection of articles thatfollows will shed new light on that controversy.11. See, e.g., Robyn E. Blumner, Putting 'Home' Back in the Homeland, ST. PETERSBURG TIMES(Tampa Bay, Fla.), Feb. 20, 2005, at 8P, available at http://www.sptimes.com/2005/02/20/news-pf/Columns/Putting.home-back-i.shtml (on file with the McGeorge Law Review).12. A LexisNexis search on May 2, 2007 revealed that Kelo had been cited in 448 law review articles,notes, and comments. See, e.g., Abraham Bell & Gideon Parchomovsky, The Uselessness of Public Use, 106COLUM. L. REV. 1412 (2006); Douglas W. Kmiec, Hitting Home-The Supreme Court Earns Public NoticeOpining on Public Use, 9 U. PA. J. CONST. L. 501 (2007); Julia D. Mahoney, Kelo's Legacy: Eminent Domainand the Future of Property Rights, 2005 SUP. CT. REV. 103 (2005).

Introduction: The Impact of Kelo v. City of New London on Eminent Domain

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Introduction: The Impact of Kelo v. City of New London on Eminent Domain

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