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Supreme Court of the United States

Susette Kelo et al. v. City of New London et al.

545 U.S. 469; 125 S. Ct. 2655; 162 L. Ed. 2d 439; 2005 U.S. LEXIS 5011; 60 ERC (BNA) 1769; 10 A.L.R. Fed. 2d 733; 35 ELR 20134; 18 Fla. L. Weekly Fed. S 437

Argued: February 22, 2005
Decided: June 23, 2005



When the Supreme Court of the United States announced its 5-4 decision in the case of Kelo v. City of New London, many in the mainstream media took umbrage with the decision.

     Stop the presses! Homeowners are being oppressed by the big, bad government and the Supreme Court says it's okay!

Opinion articles were titled with eye-catching and harsh titles such as, "Property wrongs: A Supreme Blunder" (San Diego Union-Tribune) or "Homeowners Shown the Door" (Connecticut Weekly Desk). ABC World News even made a particular point of highlighting a quotation from Justice O'Connor's dissent when they covered 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". In the days following the announcement, a man by the name of Logan Clements sponsored an attempt to take the New Hampshire home of Justice Souter, who had voted with the majority, and replace it with the "Lost Liberty Hotel" because such an action would obviously provide the same sort of "economic benefit" that demolishing the properties of the home and land owners would provide in New London.

Obviously, the court had attacked the very sanctity of private property. A cherished right of Americans and people across the world.

No…not really.

While an easy way to garner sympathy for the 9 property owners—including Susette Kelo, the lead petitioner—who appeared to be defending their homes from an unsympathetic and cold government that sought to destroy their properties because it could serve a better use as in the city of New London's plans for economic redevelopment, it is at best—a half-truth.

The Supreme Court of the United States is the highest court in the United States; it is the court of last resort once all possible judicial options have been exhausted, one can appeal to the court to review a case. It also determines the constitutionality of all laws in the United States, state and federal. Kelo was a case that was appealed from a decision (against the landowners) by the Supreme Court of Connecticut which held that the actions of the city of New London fit the public use requirement of the Fifth Amendment's takings clause.

     Okay, great. What is a takings clause? Does it mean you can constitutionally “take” the cookie I'm eating?

Alas, good reader. I ate the cookie, and no, it doesn't. The Fifth Amendment states that:

“...nor shall private property be taken for public use, without just compensation.”
This is the takings clause, which means that the government is not allowed to take private property unless:
  1. It provides a legitimate public use rational.
  2. The owners are properly compensated for their loss.

The second stipulation of the takings clause is pretty straightforward and usually the fair market value is paid to the owners for their loss. This power of the government is usually known as, "eminent domain". Kelo wasn't concerned about the compensation aspect of eminent domain; it focused solely on what determined a public use taking and if New London's taking of their properties qualified as one.

The United States is a common law system, the Anglo-Saxon legal system (found in many former British Colonies such as Canada, Australia, or India) and unlike systems of civil law much weight is put on prior court decisions, the legal term being, stare decisis—Latin for, “to stand by things decided.” Subsequently, the court in Kelo relied on many precedents to arrive at its decision. The two biggest ones were a 1984 case called, Hawaii Housing Authority v. Midkiff and a 1954 case, Berman v. Parker.

In Midkiff, the State of Hawaii legislature attempted to fix a serious problem with the property market in the State. The legislature had discovered that while 49% of the property in the State was owned by the federal or State government, a whopping 47% was owned by only 72 people. So, after discussions with the landowners about what to do about this went nowhere, the state enacted the Land Reform Act of 1967 in order to provide a means for renters to actually own their homes.

Of course, the landowners didn't like this and challenged the legislation as an unfair taking, because, they argued, there wasn't a public use. Private property was being transferred from one private property (the landowners) to another (the renters). Of course, the Supreme Court didn't see it that way, and in a 9-0 decision delivered by Justice O'Connor upheld the actions of the Hawaiian legislature. Arguing that, as part of the broad powers of government to maintain morality, order, ethics, etc. which are collectively known as the police power, it isn't inappropriate for a government to use its eminent domain powers to correct such a gross inequality that undoubtedly possesses a substantial public benefit. Of course, this isn't to say that the government could just take any private property because they made up a ridiculous public use for it. As O'Connor wrote, “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.”

Midkiff and Kelo both relied on the Berman case which involved the redevelopment of blighted areas in the District of Columbia. Congress, acting as the local government of the District, had passed the District of Columbia Redevelopment Act of 1945. One of the first uses of this legislation was to tackle a seriously blighted part of the District. So, a redevelopment plan was created, discussed, and approved. Properties were condemned and taken through eminent domain in an attempt to redevelop the area and remove the blight, but there was a department store that was located in the blighted area. It itself wasn't blighted, nor did it contribute to the blight. So, the owners fought the taking of their property, attacking the legislation as unconstitutional and the seizure of their property an unfair taking that couldn't possible serve a public use: it would have been redeveloped and used for private purposes.

In another 9-0 decision, Justice Douglas argued that the police power of the state provides governments with broad powers to defend the public welfare. The redevelopment plans were not arbitrary or designed to fix a perceived problem with the District. It was not the job of the judiciary to figure out, except in the most narrow of cases, what determined a public use and whether or not this redevelopment plan was the best solution for removing the blight. As Douglas wrote, once the plan has been developed, the use of eminent domain is only a “means to an end” in accomplishing that goal.

So, Kelo shows up and the court looks at it.

    New London had been suffering from decades of economic decay—by 1998 when the plans for redevelopment started, the city was seeing its lowest population since 1920.

    The redevelopment plan, aided by the State of Connecticut, had been open for public review and been submitted to all the proper state agencies for approval before the condemnation proceedings to take the petitions' properties began and even then the city had attempted to negotiate with them.

    The intentions of the plan were not to purely private, though it was clear that the intention was to redevelop the area for businesses. It was designed to help fix the various economic problems of the area. A clear public use. If the intention of the redevelopment scheme was so that the government officials could pocket some kickbacks, such evidence was never presented nor even relevant.

    The problem that the petitioners had was that their properties neither contributed nor were part of the economic problem of the state, so why did they have to lose their properties? As Midkiff and Berman established, such takings were well within the scope of the takings clause.


The judgement of the Supreme Court of Connecticut is affirmed.

Court Vote

Opinion: Stevens; Souter, Ginsburg, Breyer joined.
Concurrence: Kennedy

Dissent: O'Connor; Rehnquist, Scalia joined.
Dissent: Thomas

Related Cases


Works Referenced

Barros, Benjamin. "PropertyProf Blog: Justice O'Connor, Midkiff, and Kelo: A short Morality Play in Two Acts" <http://lawprofessors.typepad.com/property/2005/10/justice_oconnor.html>.

Berman v. Parker, 348 U.S. 26 (1954)

Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)

Kelo v. City of New London, 545 U.S. 469 (2005)

National Conference of State Legislatures. "Post Kelo v. New London State Eminent Domain Legislation". <http://www.ncsl.org/programs/natres/post-keloleg.htm>.

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