Government Takings of Private Property: Kelo and the Perfect Storm

Abstract

In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the "public use" requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden collective recognition of the Court's public use doctrine, and in this chapter we explore the possible reasons for this change.

Keywords: Law & Psychology, Norms & Informal Order, Property, Land Use & Real Estate Law