Eminent Domain after Kelo V. City of New London: An Argument for Banning Economic Development Takings

Abstract

Last summer's U.S. Supreme Court decision in Kelo v. City of New London elicited angry responses from legislators, citizens and many scholars. The 5-4 decision held that the use of the eminent domain power to transfer non-blighted property to private entities for economic development satisfied the public use requirement of the Taking Clause. This article argues that the Kelo decision was correct as a matter of law, following naturally from U.S. Supreme Court precedent and consistent with prevailing judicial and legislative approaches to the public use question that pre-date the U.S. Constitution. Nonetheless, the practical result of existing public use doctrine is an eminent domain regime that frequently produces unjust and inefficient results, favors special interests over property owners, and provides inadequate protection of private property. After surveying the history of forced property transfers in the United States from the Colonial Era through the present, and analyzing the consequences of the present doctrine, the article calls for a ban on takings for economic development, preferably by state constitutional amendment.

Keywords: eminent domain, public use, takings clause, economic development, Kelo v. City of New London