Eminent Domain After Kelo

• Author: John Dwight Ingram
• Position: Professor of Law, The John Marshall Law School
• Pages: 56-77

EMINENT DOMAIN AFTER KELO

JOHN DWIGHT INGRAM∗

INTRODUCTION

Most Americans believe in the old saying that “a man’s home is his

castle.”1 Yet, while the power of eminent domain is not expressly stated in

the United States Constitution, it has been accepted as an inherent power of

the sovereign.2 This is reflected in the Fifth Amendment to the

Constitution:3 “No person shall be . . . deprived of life, liberty or property

without due process of law; nor shall private property be taken for public

use, without just compensation.”4

On its face, read literally, the Fifth Amendment says that a

governmental body can take private property only if it both makes a public

use of the property and pays for the property.5 Prior to the United States

Supreme Court’s 2005 decision in Kelo v. City of New London,

Connecticut,6 the original concept of public use was that it meant use by a

governmental body for public roads, schools, parks, and such; or, if the

property would be owned by a private entity, it would be used by a

railroad, utility, bridge, etc., to which the public would have broad access.7

The proponents of the narrow view of “public use” maintained that it

meant that property acquired by eminent domain must be actually used by

the public or the public must have the opportunity to use the property.8 On

∗ Professor of Law, The John Marshall Law School. A.B., Harvard University, 1950;

J.D., The John Marshall Law School, 1966. The valuable contributions of my very capable

research assistants, Alison Hayden, Vasiliki Agorianitis, and Nancee Barth, are gratefully

acknowledged.

1 See Steagald v. United States, 451 U.S. 204, 229 (1981).

2 See United States v. Carmack, 329 U.S. 230, 241–42 (1946) (referring to the Takings

Clause as a “tacit recognition of a preexisting power”).

3 U.S. CONST. amend. V.

4 Id.

5 See id.

6 545 U.S. 469 (2005).

7 Id. at 512 (Thomas, J., dissenting).

8 Cf. County of Wayne v. Hathcock, 684 N.W.2d 765, 787 (Mich. 2004). The Michigan

Supreme Court overruled Poletown Neighborhood Council v. Detroit, 304 N.W.2d 455, 459

(Mich. 1981) (holding an economic benefit to the community justifies the taking of private

property by eminent domain). In Wayne, the court concluded that Poletown was a “radical

departure from fundamental constitutional principles and over a century of this Court’s

(continued)

56 CAPITAL UNIVERSITY LAW REVIEW [36:55

the other hand, there is a much more liberal and permissive approach,

which essentially equates “public use” with public benefit.9

Eminent domain is, of course, coercive. It exists so that property

owners cannot thwart projects deemed to be beneficial by forcing them to

sell when they do not wish to do so, either because the condemnor’s offer

is below the property owner’s asking price, or because the owner wants to

continue his10 ownership for personal reasons.11 Especially in the latter

case, the exercise of the power of eminent domain can have a profound

impact. A property owner lives in a nice house that he is very happy in,

and he does not want to move. Or he owns a successful small business that

is thriving on the good will built up in the neighborhood but knows that the

good will cannot be transferred to a new location.

Yet the emotional impact and other effects on unwilling sellers will not

deter the actions of a condemning authority which has an opportunity to

put a parcel of property in the hands of a new private owner who will build

a factory, shopping center, or other project which will create many new

jobs and tax revenues.12 There is little question that the new use of the

property will produce a “public benefit.” But is this a “public use,” as

required by the Fifth Amendment? After Kelo, the answer is “yes,” so far

as the United States Constitution is concerned.13 However, both before and

after Kelo, many states have acted to accept Justice Stevens’ invitation in

the majority opinion to narrow the definition of “public use.”14

eminent domain jurisprudence.” 684 N.W.2d at 787. It adopted a more narrow

constitutional approach that economic benefit does not justify eminent domain. Id. at 781–

87. See also MICH. CONST. art. 10 § 2; MICH. COMP. LAWS ANN. § 213.23 (West. 1998 &

Supp. 2007).

9 See Kelo, 545 U.S. at 473–75.

10 When the gender for a personal pronoun could be either male or female, I use the

masculine pronoun generically, due to habit and my masculine personal orientation. By

doing so I avoid the rather awkward “he or she” and the grammatically incorrect “they.” I

trust that female authors will balance the scales on the other side.

11 Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An Argument

for Banning Economic Development Takings, 29 HARV. J.L. & PUB. POL’Y 491, 536 (2006).

12 Kelo, 545 U.S. at 506 (Thomas, J., dissenting).

13 Id. at 483–84 (majority opinion).

14 Id. at 488. See also Terry Pristin, Voters Back Limits On Eminent Domain, N.Y.

TIMES, Nov. 15, 2006, at C6 (“34 states have adopted laws or passed ballot measures in

response to the Connecticut case, Kelo v. New London, which upheld the right of local

officials to require the forced sale of homes and businesses for private development

intended to increase the tax base of one of the state’s poorest cities”).