Eminent Domain After Kelo

AuthorJohn Dwight Ingram
PositionProfessor of Law, The John Marshall Law School
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
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
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. POLY 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”).

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