Charging Ahead: IJ Mobilizes After the Supreme Court’s Abandonment of the Constitution

August 1, 2005

Shortly before Independance Day 2005, the U.S. Supreme Court handed down its dreadful decision in Kelo v. New London. Since then, the Institute has gone from short-lived dejection to steely determination as we forge ahead despite a setback. In that, we share the determination and emotions of America’s Founders on July 4, 1776.

The Kelo decision has dire implications for homeowners, small businesses, churches and other property owners across the nation. The Court ruled that the Fifth Amendment to the U.S. Constitution essentially provides no limit to the use of eminent domain for private economic development. As Justice Sandra Day O’Connor wrote in her powerful dissenting opinion, under the Court’s decision, “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.”

This is not the America the Founders envisioned.

The core team that had been involved in the Kelo case from the trial court up to the highest court in the land gathered in my office on the day of the decision. We knew the Court had only two days left to make decisions so it had to be that day or the following Monday. We checked a website that gives almost real-time reports from the Court when decisions are announced. Before announcing Kelo, the Court had already handed down five minor decisions, so we thought we would have to wait until the final day of the term.

Then the phone rang.

It was a call from the Supreme Court clerk’s office telling me the Court had decided Kelo and that “it was affirmed.” I put the phone down and told the other folks in the office. They, like I, knew what the cold legalese of “affirmed” meant. There was a brief moment of stunned silence. My mind raced from disgust over what the Court had done to a vital part of the Constitution to what this decision meant for the homeowners in New London who had fought so long and hard to stay in their homes. It meant that Susette Kelo could lose her dream home for which she had worked so hard. It meant that 87-year-old Wilhelmina Dery might be evicted from the only home she had ever known.

Despite our despair, we immediately set to work both to comment on the decision and, more importantly, to put together a game plan to fight back.

We were greatly encouraged when paralegal Gretchen Embrey returned from the Court with copies of the opinions and we learned that the decision was by a very narrow 5-4 margin. Moreover, we saw the strength of the dissenting opinions, notably the one written by Justice Sandra Day O’Connor, a justice not known for overstatement. Her opinion was scathing, and you could tell that she, too, was very upset by what the majority had done to the Constitution and to the country.

And then, in the wake of this decision, an amazing thing happened across the nation. As Chip Mellor documents in his article, Americans are virtually united in their opposition to the Kelo case and their desire to do something about it. As Chip further explains, we immediately set to work to take the genuine grassroots anger and energy about the decision and transform it into productive activism to change the law.

As far as the Kelo decision goes, we are confident that one day, perhaps in the not-too-distant future, the Supreme Court will overturn this disastrous ruling, consigning it to the same fate as other discredited decisions like Plessy v. Ferguson (which upheld “separate but equal”) and Korematsu v. U.S. (which upheld the internment of Japanese-Americans during World War II).

The majority opinion in Kelo, authored by Justice John Paul Stevens and joined by four other justices, is not only wrong under a proper reading of the Constitution, it is quite shoddy in its legal reasoning. For instance, Justice Stevens hinted that, perhaps in a future case, if there were overwhelming evidence that a taking was solely to benefit a specific private party (no test or even guidance is established, though, as to how a court would make such a determination), then perhaps it would violate the public use provision. Justice Stevens then goes on to state that such concerns are not relevant in the Kelo case because the City did not know who the private beneficiaries would be! The Court thereby gives an open invitation to governments to do speculative takings. As we pointed out in our briefs, the City did not even know what it was going to do with most of the land at issue in this case or to whom it would go. But, according to Justice Stevens, that’s okay. Condemn now, don’t name the private beneficiary, and then cut sweetheart deals with developers later on, after the rightful owners have lost their homes or small businesses and can no longer challenge the takings. How perverse.

The majority opinion and the concurrence by Justice Kennedy offer some narrow room for future legal challenges under the public use provision of the U.S. Constitution. The Court suggested that projects that don’t go through a planning process might still be subject to challenge. The problem is that virtually every project in the country that uses eminent domain has a plan and goes through some kind of planning process. If the majority thinks they offered any meaningful protection, they are completely disconnected from reality. There have been some outliers where the local government was too stupid or careless not to make a plan, but they will be increasingly few and far between. Instead, most projects are just like the project in Kelo. There was no outright corruption, although the process miraculously resulted in a project that exactly met the desires of a private party—in this case, Pfizer.

The bright spot of the majority opinion is that it recognized that state supreme courts are free to grant greater protections to property owners under their respective state constitutions. Indeed, it almost seemed like the Court was inviting them to do so. As Justice Stevens wrote: “[N]othing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” And that is where most of our litigation focus will be directed in upcoming eminent domain battles. Thankfully, every state constitution has a provision regarding public use and we will work to vigorously enforce those provisions throughout the country. Several state supreme courts, including those in Illinois and Michigan, have recently handed down good eminent domain decisions under their own state constitutions, and we are confident that trend will continue.

The Institute for Justice will also continue the fight to keep the people in New London in their homes. The day after Independence Day, we held a rally in front of City Hall in New London to demand that the City Council let the homeowners stay in Fort Trumbull. Hundreds of people demonstrated from both the local area and as far away as Texas, New Jersey and Kentucky. The City does not need their land to do new development projects, and everyone knows that. Susette Kelo, Byron Athenian, Bill von Winkle, the Derys, Richard Beyer, the Guretskys and the Cristofaros are American heroes who should be honored, not evicted.

Much work must be done and huge challenges lie ahead. But when they announced independence from the British crown almost 230 years ago, the Founders faced even greater challenges than we do today, and we take inspiration from their perseverance and commitment to securing individual liberty.

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Charging Ahead: IJ Mobilizes After the Supreme Court’s Abandonment of the Constitution

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