Americans, Left and Right, Work to Counter Kelo Decision

Published September 1, 2005

Controversial Supreme Court decisions animate much of American history, but few have been so widely condemned as the Supreme Court’s 5-4 ruling in the case of Kelo v. New London, handed down June 23. The case is spurring Americans across much of the political spectrum into action to defend their homes and businesses from seizure by local government.

In Kelo, the nation’s highest court agreed with the Connecticut Supreme Court in allowing the town of New London to take homes under the legal principle of eminent domain. The city will turn the land over to a private developer to build a condominium, office, and hotel complex.

The Kelo ruling sent a message to local governments nationwide that any private home or business could be considered for condemnation under the Court’s view of eminent domain.

Overwhelming Opposition Arises

The public response has been staggering. A Quinnipiac University poll found Connecticut citizens, by an 89 percent to 8 percent margin, disagreed with the Kelo decision and wanted state legislators to take action to protect against eminent domain abuse. That’s a whopping 11-to-1 margin.

An unscientific online poll at showed 98 percent of the almost 200,000 respondents opposed governments taking property for use in private development projects.

Public outrage is turning into action. Unlike many U.S. Supreme Court decisions, which leave no remedy except the arduous path of a constitutional amendment, the Kelo decision allows states to set tighter standards for use of eminent domain.

Accordingly, the country has erupted at the grassroots.

Opponents Spring into Action

At least 31 states are considering legislation to ban the use of eminent domain for private projects, impose additional restrictions on its use, or redefine “public use,” “economic development,” and “blight,” according to the Castle Coalition. The coalition was formed in 2002 by the Institute for Justice, whose lawyers argued the Kelo case for the seven homeowner plaintiffs, and is spearheading legislative efforts to address eminent domain abuse.

Alabama became the first state to enact eminent domain reform after the Kelo decision, when Gov. Bob Riley (R) on August 3 signed legislation prohibiting cities and counties from using eminent domain for private development or to boost tax revenue. While property rights advocates praised the new law, they were quick to point out the state’s definition of “blight” remains vague enough to allow considerable mischief.

“For full protection,” said Dana Berliner, attorney with the Institute for Justice, “legislators must reform the blight laws that all too often provide a sham justification to use eminent domain for private profit. In Alabama you can condemn property under blight law if it might become blighted in the future, or if the property is ‘obsolescent’–usually a code word for ‘we’d like something else here.'”

States Making Changes

Connecticut Gov. Jodi Rell (R) has called for a moratorium on all eminent domain proceedings until the legislature can consider and enact changes to the process. New London officials have agreed to abide by the moratorium, allowing Susette Kelo, the lead plaintiff in the case that bears her name, and the other plaintiffs to keep their homes for now.

New York state legislators have made a similar call for a moratorium until the issue can be addressed legislatively.

The Texas House of Representatives passed legislation unanimously that would amend the constitution to prevent local governments from taking property for private economic development. The state senate passed similar legislation, but the two chambers couldn’t reconcile their differences. The bills could be brought up again in the next legislative session in 2007.

Supreme Court

Reform legislation is pending in California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, and Tennessee. In Alaska, Louisiana, Ohio, Oklahoma, South Carolina, South Dakota, and Wisconsin, legislators have announced plans to introduce bills in their upcoming sessions. In Colorado, Georgia, and Virginia, legislators have announced plans to revive previously introduced measures to curb eminent domain abuse.

Constitutional Amendments Considered

In several states–Alabama, California, Florida, Michigan, New Jersey, and Texas–legislators are mobilizing to support proposed state constitutional amendments prohibiting eminent domain for private development. In states with voter initiative, citizen activists are considering direct action.

Governors and legislators in Arkansas, Delaware, Florida, Indiana, Missouri, New Hampshire, and Tennessee have created state commissions to study the use of eminent domain and needed reforms. Legislators in Nevada and Utah took action to improve protections for property owners before the Kelo ruling.

Numerous localities have reacted by passing new ordinances limiting use of eminent domain, and citizens are urging action from local councils or in some cases considering local voter initiatives to restrain governments from taking private property.

Congress Voices ‘Grave Disapproval’

Congress is also reacting to the ruling. A symbolic resolution registering the House of Representatives’ “grave disapproval” of the ruling passed with 365 votes, and legislation has since been introduced to put legal teeth behind that sentiment.

Conservatives, including House Judiciary Chairman James Sensenbrenner (R-WI), are teaming up with liberal Reps. Sheila Jackson Lee (D-TX) and Maxine Waters (D-CA) to restrict use of federal development assistance and community development block grants in communities that allow property to be seized for private redevelopment. They and other Republicans and Democrats are working with a coalition whose members range from the NAACP to religious groups to farmers.

“One positive from this [Court decision] is the interesting alliance between traditional liberals, who like to look out for the little guy, and traditional conservatives and libertarians, who defend individual rights and property rights,” said John Tillman, president of Americans for Limited Government, a group that works to defend property rights. “A tremendous grassroots movement is building on eminent domain.”

Ruling Redefined Public Use

Kelo centered on the legal notion of “public use.” The Court ruled that taking homes from private owners and giving them to a real estate developer to build a commercial complex projected to increase jobs and tax receipts was a constitutionally sound “public use.”

The Fifth Amendment to the Constitution allows governments to take private property for “public use,” provided that property owners are paid “just compensation.” For most of the nation’s history, public use was understood to be something used by and for the public, such as government buildings or public roads.

In the Kelo case, the private developer stands to reap millions of dollars of profit, and the property would be under the control of private owners.

Paul Jacob ([email protected]) is a senior fellow at Americans for Limited Government. His daily “Common Sense” commentary appears on the Web at and on more than 150 radio stations across America.

For more information …

The Castle Coalition offers model legislation on its Web site at

Information on the Kelo aftermath is also available on the Web site of Americans for Limited Government,