One of the worst Supreme Court decisions ever is now the subject of a major motion picture. Little Pink House opens in theaters around the country on April 20th. It tells the true story of Susette Kelo and her neighbors whose houses were taken by the City of New London, Connecticut for the benefit of a private developer. The redevelopment was supposed to include a research facility for the giant pharmaceutical company Pfizer, but nothing was ever built after the houses were demolished. Today, there’s nothing but weeds where a neighborhood once stood.
The power of eminent domain is contained in the Fifth Amendment of the U.S. Constitution. The Takings Clause says private property shall not be taken for public use without paying just compensation. This applies to state and local governments through the Due Process clause of the 14th Amendment which reads, in part, no person shall be deprived of property without due process of law.
No one denies that the government can take private property for public use, as long as it pays just compensation. The typical example is taking private property to build a road or public library. The 2005 Kelo case, however, expanded on prior Supreme Court precedent that puffed up ‘public use’ so that eminent domain could apply in many more instances. Through judicial alchemy, the words ‘public use’ in the Constitution now read ‘public benefit’. Under the Supreme Court’s loose interpretation of Constitutional language, New London, Connecticut could take an entire neighborhood and give it to a private developer in the hopes that, some day, the property would generate economic development and a bigger tax base. According to the Supreme Court, a public use is no longer required, as long as the public might benefit in some way. The Kelo case was not an isolated incident. Kelo-type reasoning led to more than 10,000 forced transfers of property, or threats of transfer, from one private owner to another private owner in the five-year period from 1998 to 2002.
There was a nationwide backlash against the Kelo decision. More than 40 states enacted some form of protection against the use of eminent domain for private gain. In my own state of Virginia, the state constitution was amended in 2012 to prevent the use of eminent domain for private enterprise, job creation, higher tax revenue, or economic development. That amendment was approved by 75 percent of the voters at the ballot box. When’s the last time you saw 75 percent of the electorate line up behind anything?
Susette Kelo and her neighbors eventually received an apology from the City of New London, but eminent domain abuse continues to this day. A Korean family built a successful dry cleaning business in East Harlem, New York, but the city wants to take it so a private developer can build an entertainment complex.
Property rights are very popular and our side should be using them more often to halt the advance of the political Left. We have fundamental justice on our side and, thankfully, most people – Supreme Court justices notwithstanding - can still see that.