Kelo v. City of New London (2005)
Suzette Kelo provoked a national controversy over land use when she filed a lawsuit challenging New London, Connecticut’s effort to condemn her home in the Fort Trumbull area of the city. As part of an urban redevelopment scheme, New London promised to give a substantial parcel of land to the Pfizer Corporation, which promised to build a research facility that they claimed would substantially increase job opportunities for city residents. New London offered fair compensation to Ms. Kelo, but she did not want to leave the home or neighborhood where she had lived for many years. Her lawsuit claimed that New London’s decision to take land from one private owner and give the land to another private owner was not a “public use” under the takings clause of the Fifth Amendment, which declares “nor shall private property be taken for public use without justification.” Although the Fifth Amendment limits only the federal government, longstanding federal precedent maintained that states are obligated by the due process clause of the Fourteenth Amendment to protect the rights set out by the takings clause of the Fifth Amendment.
The Supreme Court by a 5-4 vote declared that New London satisfied the public use requirement of the takings clause. All nine justices agreed that the public use requirement was satisfied when government condemned private property and retained the title or when government condemned private property and gave title to a private owner who opened the property to a general public. Had New London converted Ms. Kelo’s home into a government office building or gave the property to a major league baseball team owner who built a stadium open to the public, the taking would not have been constitutionally controversial. Justice John Paul Stevens’ opinion for the court maintained that the public use requirement was also satisfied whenever the new private owner was expected to “provide appreciable benefits to the community.” In this case the promise of “new jobs and increased tax revenue” provided sufficient constitutional justification for New London’s decision to condemn Ms. Kelo’s property and give that and other parcels to Pfizer.
Chief Justice William Rehnqust, Justice Sandra Day O’Connor, Justice Clarence Thomas and Justice Antonin Scalia dissented. O’Connor’s dissent claimed that states could give condemned property to a private owner who did not open the land to the public only when the existing use of the property was causing harm to the general public. States could condemn buildings being used for drug sales, but not Ms. Kelo’s concededly well-kept house. O’Connor pointed out that the contrary ruling left all property open to condemnation as “nearly any lawful use of real private property can be said to generate some incidental benefit to the public.” Thomas’s dissent insisted that condemned private property could be given to a private owner only when that private owner opened the property to the public.
Kelo v. City of New London, 545 U.S. 469 (2005) interpreted the Constitution of the United States. In the controversy that followed the Kelo decision, many states passed state constitutional amendments or state laws that sharply limited state takings powers. These laws are constitutional. States may not violate rights the Supreme Court maintains are protected by the Constitution. States may, however, protect rights that are not protected by the national constitution. Federalism permits states to add rights, such as the right not to have one’s property transferred to a private owner, even when compensation is paid. Since no one has a federal constitutional right to take ownership of condemned property, state constitutions and state laws that require state takings to be subject to a strict standard than Kelo mandated are consistent with the Fifth and Fourteenth Amendments, with the proviso that no state may require the federal government to adhere to a stricter standard than Kelo mandated when Congress condemns property within a state.
Mark A. Graber
University of Maryland Carey School of Law
Last updated: January 2019