Popular Constitutionalism after Kelo

Abstract

In Kelo v. City of New London, the Supreme Court offered its interpretation of the Takings Clause. We the People disagreed. In an unprecedented legal backlash, Americans from across the political spectrum united to oppose what they overwhelmingly viewed as a grievous constitutional error. But this reaction wasn’t merely political. Through the auspices of popular constitutionalism, the American people worked to abrogate the Supreme Court's understanding of the Takings Clause and replace it with their own.

This symposium essay, written in honor of Ilya Somin’s “The Grasping Hand,” explores how popular constitutionalism emerged after Kelo. Part I offers a brief sketch of the Supreme Court’s decision in Kelo and how it weakened the constitutional protection of property rights.

Part II charts how voters and legislators in forty-five states enacted reform legislation to curb eminent domain abuse, and claw back Kelo. The intensity and fervor with which the states tackled this issue — in particular those enacted through popular referenda rather than the legislature — is a testament to the populace’s rejection of the Supreme Court’s constitutional interpretation. Kelo offers an exemplar of how the people, and not the Supreme Court, remain the final arbiters of the meaning of our Constitution.

Part III highlights how popular constitutionalism also impacts state court judges interpreting state constitutions. In one of the more curious developments following Kelo, state courts consistently disregarded Kelo as a guide for interpreting their state constitutions — a departure from how these same courts had followed the federal Supreme Court’s lead on the Takings Clause for decades. Many of these judges, acting as conduits of the people, expressly rejected Kelo.

Through both legislative and judicial channels, Americans manifested a wide-ranging constitutional repudiation of the Supreme Court’s decision. On Kelo’s inglorious decennial, thanks to popular constitutionalism, eminent domain ain’t what it used to be.

Keywords: Kelo, Popular Constitutionalism, Eminent Domain, Public Use