The Federalist Society recently posted a video I made for them about the Supreme Court’s controversial ruling in Kelo v. City of New London (2005). In Kelo, a narrow 5-4 majority ruled that private “economic development” qualifies as a”public use” allowing the government to use eminent domain to seize private property and transfer it to a new private owner, under the Takings Clause of the Fifth Amendment. In the video, I briefly describe the background of the case, the majority’s rationale for its decision, and why that rationale had serious flaws from the standpoints of both originalism and living constitutionalism. I also summarize the widespread judicial and political backlash against the court’s ruling.
I go over these issues in much greater detail in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. The debate over Kelo and public use continues to this day. Several Supreme Court justices have expressed interest in revisiting the case and perhaps overruling it.
In his 2019 memoir, the late Justice John Paul Stevens expanded on his earlier admission that his majority opinion included a serious misreading of precedent (though he continued to believe that the Court got the bottom-line result right). There aren’t many prominent Supreme Court decisions where the author of the majority opinion later conceded that it was partly base on an “embarrassing to acknowledge” error.
I hope the video will serve as a useful introduction to Kelo and the still-ongoing debate over eminent domain and public use.
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