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The Grasping Hand"Kelo v. City of New London" and the Limits of Eminent Domain$
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Ilya Somin

Print publication date: 2015

Print ISBN-13: 9780226256603

Published to Chicago Scholarship Online: May 2016

DOI: 10.7208/chicago/9780226256740.001.0001

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The Kelo Decision

The Kelo Decision

Chapter:
(p.112) Chapter Four The Kelo Decision
Source:
The Grasping Hand
Author(s):

Ilya Somin

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226256740.003.0004

This chapter assesses the Supreme Court’s opinion in the Kelo case. The majority opinion, written Justice John Paul Stevens, has numerous flaws. These include excessive deference to a flawed political process and severe misinterpretation of relevant precedents (a mistake later admitted by Justice Stevens himself). Most of all, it allows the government to define the scope of a constitutional right intended to constrain that government’s own abuses of power. No other right enumerated in the Bill of Rights gets such treatment. Justice Anthony Kennedy’s concurring opinion also has significant weaknesses. The dissenting opinions by Justice Sandra Day O’Connor and Clarence Thomas make a number of strong points, but also have shortcomings of their own. O’Connor’s dissent has difficulty reconciling her position in Kelo with her own earlier opinion for the Court in the 1984 Midkiff case. Despite, their weaknesses, however, the Kelo opinions did shatter the previous seeming consensus in favor of a broad definition of public use.

Keywords:   John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, Clarence Thomas, Kelo, supreme court, public use, judicial deference

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