The Liberty Papers

It was five years ago today, that the Supreme Court issued it’s decision in Kelo v. City of New London

In 1998 the pharmaceutical company Pfizer announced plans to build a giant new research and development center in New London, Connecticut. As part of the deal, city officials agreed to clear out neighboring property owners via eminent domain, giving a private developer space to build a fancy new hotel, apartment buildings, and office towers to complement the corporate facility. Five years ago today, in Kelo v. City of New London, the U.S. Supreme Court upheld this seizure of private property because it was part of a “comprehensive redevelopment plan” that would provide “appreciable benefits to the community.”

Basically, the City of New London, Connecticut sought to redevelop an older neighborhood in hopes of increasing the city’s tax base. The City didid this by entering into a development deal with the politically powerful Pfizer Corporation for the expansion of Pfizer’s property in the city and the creation of a business conference center. Several property owners refused to sell to the city, one of them being Susette Kelo. As a result, the New London Development Corporation initiated condemnation proceedings against Kelo and the remaining property owners and the case made it’s way through the Court system and, of course, Susette Kelo ultimately lost her bid to protect her property. Then, the ultimate ironic injustice occurred this past November when Pfzier announced that they were abandoning the property that had been condemned, including the lot that had once contained Suzette Kelo’s house.

The reaction to the decision was swift and severe, with condemnations coming from both sides of the political aisle, and five years later the Kelo case has had the ironic benefit of spurring many states to limit the use of eminent domain:

• 43 states have passed either constitutional amendments or statutes that reformed their eminent domain laws to better protect private property rights. Although the quality and type of reform varies, the bottom line is that virtually all of the reforms amount to net increases in protections for property owners faced with eminent domain abuse. (For a state-by-state grading of all state eminent domain reforms, see: http://castlecoalition.org/57.)

• Nine state high courts restricted the use of eminent domain for private development while only one (New York) has so far refused to do so.

• Kelo educated the public about eminent domain abuse, and polls consistently show that Americans are overwhelmingly opposed to Kelo and support efforts to change the law to better protect property rights. Among the most-recent surveys was one conducted by the Associated Press, which found 87 percent of respondents said government shouldn’t have the power of eminent domain for redevelopment, 75 percent opposed government taking private property and handing it over to a developer, and 88 percent of respondents said property rights are just as important as freedom of speech and religion.

• Citizen activists defeated at least 44 projects that sought to abuse eminent domain for private gain in the five-year period since Kelo.

As the Institute for Justice, a libertarian legal group that handled Susette Kelo’s defense, puts it:

“This significant public opposition to eminent domain abuse led to a complete change in the public’s view on this issue,” said Christina Walsh, IJ’s director of activism and coalitions. “Although public officials, planners and developers in the past could keep condemnations for private gain under the public’s radar screen and thus usually get away with the seizure of homes and small businesses, that is no longer the case.”

“One of the other reasons for this fundamental shift in eminent domain policy has been the response of state courts to Kelo,” said Dana Berliner, an IJ senior attorney and co-counsel in the Kelo case. “When the U.S. Supreme Court decided not to correctly interpret the U.S. Constitution, the state high courts began to fill that void. For example, the courts in Hawaii, Ohio, New Jersey and Pennsylvania—all states that used to regularly abuse eminent domain—each decided that, unlike the U.S. Supreme Court, they would closely scrutinize municipal takings and prevent unconstitutional abuses.”

So, in that sense, Kelo was arguably a good thing because of the unprecedented backlash that it generated. Nonetheless, it does teach us something that Thomas Jefferson is attributed with saying many years ago:

Eternal vigilance is the price of liberty.

Indeed.

In the annals of Supreme Court history, there are perhaps only a handful of cases that go down in history as more egregious than what happened in Suzette Kelo v. City of New London. In that case, the Supreme Court approved an eminent domain taking by the City of New London, Connecticut that involved taking the land of the principal plaintiff, and many others, and using it for a commercial development that would be used by Pfizer Corp. for a new corporate business center. It was a decision that was roundly and deservedly condemned at the time and which led to some efforts at eminent domain reform at the state level, many of which were successful.

But, in the end, Suzette Kelo still lost her property, and now, to add insult to injury, Pfizer has abandoned the project that was the subject of the eminent domain proceeding:

The private homes New London, Conn., took through eminent domain from Suzette Kelo and others, are torn down now, but Pfizer has just announced that it closing up shop at the research facility that led to the condemnation.

Leading drugmakers Pfizer and Wyeth have merged, and as a result, are trimming some jobs. That includes axing the 1,400 jobs at their sparkling new research & development facility in New London, and moving some across the river to Groton.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost, as five justices said this redvelopment met the constitutional hurdle of “public use.”

The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.

But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes’ seizure, has just announced that it is closing up shop in New London.

Scott Bullock, Kelo’s co-counsel in the case, told me: “This shows the folly of these redvelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

One wonders if Suzette Kelo is paraphrasing former Labor Secretary Ray Donovan and wondering, where do I go to get my house back ?