KELO: What a Difference a Decade Makes

August 13, 2015

It seems hard to believe that the U.S. Supreme Court handed down its infamous decision in Kelo v. New London a decade ago. And since that decision and since the momentum we built across the U.S., IJ has taken our unique way of using litigation, communications and activism to all four of our pillars. Our work fighting eminent domain abuse shows how we continually refine our efforts and apply lessons through the entire organization, which enables IJ to take on what many believe to be hopeless causes and fundamentally transform the law throughout the country.

Our campaign to stop eminent domain abuse started in the mid-1990s with an epic battle in Atlantic City between IJ and Vera Coking on one side and a state agency charged with promoting casinos and Donald Trump himself on the other. We won. We then secured victories for home and small-business owners from downtown Pittsburgh to rural Mississippi.

All the while, we raised public awareness of these abuses through an extensive media and research campaign. We formed the Castle Coalition to equip property owners with the tools to fight back. The highlight of this effort was a 60 Minutesexposé on eminent domain abuse that aired one year to the day before the Supreme Court agreed to take up the Kelocase.

Nothing puts a legal issue on the map like the Court agreeing to hear a case. When the Justices ruled 5–4 in Kelo that governments can take property from one private owner and hand it over to another in the name of raising new tax revenue, America was astounded. Op-ed pages were filled with denunciations of the ruling. Disbelief over the decision immediately united people from across the country and across the usual divisions you see on big policy issues. Rush Limbaugh railed against Kelo, as did the head of the NAACP.

We were determined to take the outrage that swept the nation after Kelo and turn it into profound change in the courts and in the state legislatures. We pursued more cutting-edge litigation and secured victories in California, New Jersey and Tennessee, along with a landmark unanimous ruling from the Supreme Court of Ohio completely rejecting Kelo under the state’s constitution. We drafted model legislation and testified before dozens of legislative bodies.

A decade later, we see the results. Fourty-four states passed laws to strengthen protection for property owners, with 11 of those states changing their constitutions. Nine state supreme courts also increased protections for property owners facing takings for private development. No recent Supreme Court case has had that much of a direct and widespread impact. Since the Kelo decision, IJ has helped defeat at least 60 projects that relied on the use of eminent domain and blight designations that would have paved the way for abuse. The real legacy of Susette Kelo and her neighbors is that even though they lost their homes, their battle has a huge effect on the law and the nation.

Despite this significant progress, there is still no floor of protection against eminent domain abuse under the U.S. Constitution. So people in some states have strong property rights protections, some middling and some none at all. Like the First Amendment’s protection for free speech and the Fourth Amendment’s prohibition of unreasonable searches and seizures, the public use provision is an explicit part of the Bill of Rights. The Supreme Court would not stand for First and Fourth Amendment rights not having a meaningful level of protection for all Americans, regardless of the state in which they happen to reside. The same should apply to property owners when they face abuse of the eminent domain power. Our ultimate goal is to have Kelo overturned by the Supreme Court.

Moreover, we are starting to see an uptick in takings for private development again, especially with the commercial real estate market returning and local governments hungry for new sources of tax revenue. And IJ is there. We are back in Atlantic City fighting to save the home of Charlie Birnbaum, and we are working with property owners and activists in Colorado, Illinois, Massachusetts, Missouri and other states to stop projects that abuse eminent domain. As Thomas Jefferson advised, IJ will remain eternally vigilant on this issue.

We are also applying what we learned and the skills we developed over the past 10 years to pave the way for victories in our other areas, like civil forfeiture, where we are already having gratifying success. That is The IJ Way. And before you know it, we will be saying what a difference a decade made in these new areas of law too.

Scott Bullock is an IJ senior attorney.

Dana Berliner is IJ’s litigation director.

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