Susette Kelo stands outside her home, which has been condemned by the state of Connecticut, June 27, 2005 in the Fort Trumbull area of New London, Connecticut. (Photo by Spencer Platt/Getty Images)
In 1781, a force of British troops under the command of the turncoat Benedict Arnold landed in the city of New London, Connecticut. New London for decades had been a haven for privateers, and for much of the Revolution had been the lone American-held deepwater port between British-controlled New York and Newport. Arnold and his men easily overran Fort Trumbull, which defended New London, then burned most of the city to the ground. Across the Thames River at Fort Griswold, another British force met stiff resistance, though they eventually massacred most of the Americans there.
A month later, at the Battle of Yorktown, Lafayette would exhort the American troops under his command to “remember New London.” Today, you’re more likely to hear that from a lawyer than you are a general. Once a great martyr of the Revolution, Fort Trumbull has since become the site of one of the most hated Supreme Court rulings in history. Fifteen years ago this month, the infamous Kelo v. New London decision was handed down, which affirmed the city’s right to seize private property and hand it to a developer. The case opened the door for the nearly unlimited use of eminent domain and attracted bipartisan outrage that endures to this day.
The story begins in the late 1990s, in Connecticut’s capital of Hartford, where a young and ambitious Republican governor named John Rowland was eager for a success story in a deep blue state. To that end, he looked southeast to New London, where the recent closure of a major submarine research lab had left the city economically listless. Reluctant to collaborate with local Democrats, he decided instead to work through the New London Development Corporation (NLDC) to revive the area. The NLDC, with Rowland’s blessing, went hunting for developers. It wasn’t long before they had a bite: Pfizer, the pharmaceutical giant, agreed to build a massive new headquarters in the Fort Trumbull neighborhood. At the groundbreaking ceremony in 1998, Rowland portentously declared, “Years from now, this will be a case study in how to revive a community.”
There was just one problem: Pfizer wanted a lot of space. That meant the NLDC needed to acquire the property of about 90 owners in Fort Trumbull. It quickly set about doing just that, offering them more than their land would otherwise be worth, overhung by the silent threat of property seizure if they didn’t sell. Yet seven of the holders refused to move. Among them was Susette Kelo, the owner of a riverside cottage that she’d bought, fixed up, and painted pink. Unable to badger Kelo, New London authorities turned instead to eminent domain, which is when the government, acting under the Takings Clause of the Fifth Amendment to the Constitution, acquires “private property” for “public use” after providing “just compensation.” Generally uncontroversial when employed for public projects like roads and power lines, using eminent domain to transfer land from one private owner to another is a different story entirely.
Kelo was served with an eviction notice—during Thanksgiving week, no less—that ordered her out of her home. Rather than comply, she and some of the holdouts decided to sue the city. For help, they called upon the Institute for Justice (IJ), a libertarian law firm in Washington (full disclosure: my wife works at IJ). IJ agreed to represent them pro bono and launched a legal and public relations offensive, handling Kelo’s suit while also publicizing her story. The case went first to a Connecticut trial court, which in 2002 struck down most though not all of the takings. Both sides then appealed to the Connecticut Supreme Court, which upheld all the seizures in a contentious four-to-three decision. Yet the dissenting opinion was strong enough that IJ thought they might have a glimmer of a chance at another appeal. Sure enough, in a move that stunned both sides, the U.S. Supreme Court agreed to hear Kelo’s case.
Arguments were in early 2005 and the decision was handed down four months later. It was a five-to-four split in favor of New London. Ruth Bader Ginsburg, that celebrated social justice warrior, sided with the majority to throw a working-class woman out of her home. So did Justice John Paul Stevens, who wrote the opinion. Kelo and the other plaintiffs had exhausted their options; lacking other means of redress, they were forced to move out.
Stevens’ opinion was underpinned by two pillars: federalism and precedent. On the first, he argued that the Court should have a light touch in applying the Takings Clause, deferring instead to state and local legislatures to enact eminent domain restrictions. On the second, he cited two prior Supreme Court decisions that upheld the use of eminent domain for private development. In Berman v. Parker, the Court unanimously approved of Washington, D.C.’s seizing of property in a deeply blighted neighborhood, while in Hawaii Housing Authority v. Midkiff, it allowed Hawaii to take land on Oahu that was concentrated in the hands of a wealthy few. Stevens argued that such seizures amounted to “public use” under the Fifth Amendment, and thus New London’s did too. He quoted from Berman: “The concept of the public welfare is broad and inclusive. …The values it represents are spiritual as well as physical, aesthetic as well as monetary.”
Contrast such Anthony Kennedyesque gibberish—Kennedy sided with the majority in Kelo—with the clear reasoning of Justice Sandra Day O’Connor’s dissent. O’Connor doesn’t challenge Berman or Midkiff (though a separate dissent by Clarence Thomas does). But she does note that in Berman, the intent was to control blight that was feeding poverty and dysfunction, while in Midkiff, it was to break up a land oligopoly. These constituted extraordinary public harms, as opposed to in New London, where Kelo’s home wasn’t hurting anybody.
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public.
Take that to an extreme and you get a dystopia where any private property can be seized and handed to any developer, where the benign hand of the state can assign you a value and then swap you away for anyone deemed to rate higher, homo economicus gone mad. How else to describe what New London wanted to do? They were trying to rotate out Fort Trumbull’s working class in favor of a better type of citizen, one employed in pharmaceuticals with more money to spend—and tax. Government thus gets to featherbed its favorite constituents, big corporations, while taking in more revenue for itself. This is what really happens when you negate property rights, not the egalitarian fantasies of tweenage Marxists. To justify all this under the Fifth Amendment is to nullify the Takings Clause entirely.
In spite of the Court’s confusion, the story of Kelo ends with poetic justice of a kind. The ruling touched off national outrage, as 44 states took Stevens at his word and tightened their eminent domain laws in favor of private property rights. One of the Connecticut Supreme Court justices who ruled against Susette Kelo later approached her and said he regretted his decision. Stevens in his memoir called Kelo “the most unpopular opinion that I wrote during my more than thirty-four years on the Supreme Court.” A book was published, Little Pink House by Jeff Benedict, that chronicled the Fort Trumbull homeowners; it was made into an award-winning movie.
Governor John Rowland resigned from office, was convicted of corruption charges, went to prison for a year, got out, became a radio host, was convicted of more corruption charges, and went back to prison (welcome to Connecticut!). Pfizer moved into New London, then in 2009 moved back out, its development having never been finished. Government’s enlightened arbiters of the public good had miscalculated. Today the site where the Fort Trumbull homes once stood is a barren field. The city is still trying to develop it. Local wags plant fruit trees on it.
As for Susette Kelo’s little pink house, it was ultimately saved from destruction, disassembled and moved to another street. There it stands today, a monument to the incredible neighbors who, like the patriots of 220 years before, took on despotism and very nearly won.
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