Property Rights: Eminent Domain and Regulatory Takings Re-Examined

Bruce L. Benson (editor)
Palgrave Macmillan
May 15, 2010

"In an effort to understand the reasons for and consequences of the political backlash to the U.S. Supreme Court decision, Kelo v. New London, this book brings together a diverse group of scholars and practitioners who explore the uses and abuses of eminent domain and regulatory takings. Two authors propose additional constraints on eminent-domain powers, one chapter considers compensation determination theoretically, another describes compensation determination in practice, three authors explore the politics of takings including post-Kelo legislation, four chapters examine unintended consequences of takings, and the concluding chapter explains the inherent political instability and economic inefficiency resulting from land-use regulation."

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This commentary, published shortly after the Kelo decision was announced, critiques the injustice of that decision. The authors suggest that the Congress should authorize the purchase of the homes of the five U.S. Supreme Court justices who voted with the majority in order to build five monuments to the importance of property rights.

In this commentary, Kinsella argues that although the U.S. Supreme Court's reasoning in Kelo was flawed, they ultimately reached the right result. Kinsella's view (contrary to the Supreme Court's jurisprudence) is that the Fifth Amendment does not apply to the states and was not incorporated by the Fourteenth Amendment, and thus the Court did not have the...

This op-ed was published shortly after the announcement of the U.S. Supreme Court's decision in Kelo v. City of New London. Jacoby focuses on the personal experiences of one of the homeowners who fought against New London's development plans. Jacoby also considers Justice Thomas's observation that the people most affected by Kelo will be...

This newspaper opinion article provides a first-hand account of what happened to the area surrounding Susette Kelo's house after the New London Development Corporation demolished the neighborhood. According to the columnist, the area has not seen any economic development and has instead become a shelter for feral cats.

In this article, Sandefur argues that "Kelo is not the unmitigated disaster that it appears to be." He sees the decision as directly descending from strong Supreme Court precedent, which he briefly summarizes. The Kelo opinions authored by Justices O'Connor and Thomas mark "probably the first time that any Justice has so directly challenged...

In this short commentary, abridged from a speech given on October 3, 2006, Judge Napolitano provides a brief overview of the history and substance of private property rights. He then summarizes and contextualizes the Kelo decision, arguing that the decision "eviscerated" not only the Fifth Amendment but also the preexisting natural right to exclude others...

"Homeowners' attorney Scott Bullock talks about the Supreme Court's Kelo v. New London decision and America's brewing revolution against eminent domain abuse."

"No U.S. Supreme Court decision in the modern era has been so quickly and widely reviled as the infamous Kelo v. City of New London decision, in which the Court ruled that Susette Kelo's small home in New London, Connecticut, and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect...

Chart or Graph

This chart provides a visual representation of the results of the Castle Coalition's 50-state survey of post-Kelo eminent domain reform legislation.

This chart places two national opinion polls (from Zogby Int'l and Saint Index) side-by-side, showing the widespread and extreme unpopularity of the Supreme Court's decision in Kelo v. City of New London.

Somin argues that it is not enough that the backlash against the Supreme Court's Kelo decision was widespread and severe.

This chart shows the results of public opinion surveys done in eight individual states, which asked respondents whether they agreed or disagreed with the Kelo decision.

This chart is an overview summary of the state-by-state data Somin uses.

Analysis Report White Paper

The author reviews three decisions of the U.S. Supreme Court rendered during a single session (including Kelo v. City of New London) which impact property rights.

In this report card, we have evaluated the quality and strength of reforms that have passed in the states, both so that legislators can know what is left to do and so that citizens can find out if they are really protected from eminent domain abuse.

Cohen traces the history of the constitutional "public use" limitation on the use of eminent domain powers, finding that the broad interpretation of this provision (giving the government power to seize land for any purpose that enhances the public welfare) has long been the dominant view.

Did the U.S. Supreme Court's decision in Kelo v. City of New London set off a political backlash that will ultimately strengthen property-rights protections? An examination of post-Kelo developments at state and local levels suggests that reports of the death of private-property rights may be greatly exaggerated.

This seven-page white paper, prepared by the Institute for Justice, "explains to legislators and the public why eminent domain reform is urgently needed in the wake of Kelo, and how to achieve meaningful reform that will still allow for the appropriate use of government's eminent domain power."

In this journal article, Kanner presents a multi-faceted critique of the Kelo decision. He first examines how Kelo radically expanded eminent domain powers. Kanner compares the Kelo decision to historical cases on the subject of "public use" takings.

On June 23, 2005, in the now infamous Kelo v. City of New London decision, the U.S. Supreme Court ruled that governments may use eminent domain to take and bulldoze existing homes and businesses to make way for new private development.

The holding in Kelo is detrimental for property owners because it allows perceived economic benefits to qualify as a public use for purposes of the Fifth Amendment.

The Supreme Court's decision in Kelo v. City of New London indicates that the right to property must now be considered only a conditional right; property is held on the condition that no one else can use the property in a manner that better serves a public purpose.

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum.

Video/Podcast/Media

In this interactive audio clip, the U.S. Supreme Court hears oral argument in the case of Kelo v. City of New London. Attorney Scott G. Bullock argues the case for Petitioners (Kelo, et al), while Wesley W. Horton argues for Respondents (City of New London, et al). The audio clip is linked with a written transcript, so that the argument can be easily...

"Susette Kelo's legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Susette Kelo now lives in a town across the river from New London."

"Kelo was the U.S. Supreme Court ruling that became the property rights shot heard 'round the world.

In the merely five years since that infamous ruling, the vast majority of state legislatures, many state supreme courts and the public itself have acted to limit Kelo, which took away the homes of seven New London, Conn., families...

"No U.S. Supreme Court decision in the modern era has been so quickly and widely reviled as the infamous Kelo decision, in which the Court ruled that Susette Kelo's little pink house in New London, Connecticut, and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect that the new use for her...

This video explores the history of Susette Kelo's fight to stop the city of New London, Connecticut from seizing her home through eminent domain. Background is provided by a combination of home video and excerpts from television news reports. Kelo was a legal client of the Institute for Justice, which created the video.

Primary Document

Transcript of the Bill of Rights to the Constitution.

In an opinion authored by Justice John Paul Stevens, the U.S. Supreme Court decided that the city of New London, Connecticut could condemn Susette Kelo's house and take the property for the purpose of economic development. The question presented was whether the city's actions fit within the "public use" requirement of the Fifth Amendment. The Court found that in...

Justice Kennedy joins with the majority opinion of the Court, but contemplates "the possibility that a more stringent standard of review [...] might be appropriate for a more narrowly drawn category of [government] takings" of private property. Justice Kennedy concludes, however, that this case presents no circumstances that would justify stricter review by the...

Justice O'Connor's dissenting opinion, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, argues that the Court should have found the city of New London's condemnation of Susette Kelo's property for the purpose of economic development to be unconstitutional under the Fifth Amendment.  Justice O'Connor writes that the effect of the Court's...

In his dissenting opinion, Justice Thomas undertakes a historical and textual analysis of the Takings Clause of the Fifth Amendment.  He argues that the Court should consider overturning the line of precedent that the majority follows, and instead returning to the original meaning of the "public use" requirement: "that the government may take property only if...

Lochner represents the height of economic freedom protected by substantive due process. The case arose because the owner of a bakery had violated New York state labor law, which stipulated "that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day." The court acknowledged the liberty of contract...

"I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be...

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

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