In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often de ... More

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often destroying far more economic value than they create. The people the New London takings victimized had little political power, while the influential Pfizer Corporation hoped to benefit from the takings and played an important role in pushing them through. The city’s poorly conceived development plan failed, and the condemned land lies empty and unused to this day. The Kelo decision triggered a massive and unprecedented political backlash, with 45 states enacting eminent domain reform legislation in response. Despite its flaws, the Kelo decision has led to some genuine progress. The closely divided, 5-4, ruling shattered what many believed to be a consensus supporting the view that virtually any taking qualifies as a “public use.” The Supreme Court may well overrule or limit Kelo in the future. And the political backlash led to the enactment of meaningful reforms in a number of states. Future success in curbing eminent domain abuse will require a combination of both legal and political action.