In 2005, the United States Supreme Court decided in Kelo v. City of New London, 545 U.S. 469 (2005), that the Constitution allows the government to take private property through eminent domain for the purpose of “economic development,” which it held to constitute a “public use” under the Fifth Amendment. The 5-4 decision sparked a nationwide backlash in which more than 40 states and the federal government adopted eminent domain reform legislation designed to prevent these types of takings.

The case remains exceedingly controversial and has been compared to some of the Supreme Court’s worst decisions, including Dred Scott v. Sandford (denying citizenship to black people and expanding slavery), Plessy v. Ferguson (upholding state racial segregation laws for public facilities under the doctrine of “separate but equal”), and Bowers v. Hardwick (upholding a conviction under a state law criminalizing “homosexual sodomy” (in the privacy of one’s own home)).

But contrary to what most commentators asserted at the time, Kelo was not a decision based on judicial activism but rather was consistent with the Supreme Court’s long-standing precedent regarding the Fifth Amendment’s public use requirement. In fact, Kelo can be read to be more restrictive than the precedent upon which it is based.

In Berman v. Parker (1954), for example, a unanimous Supreme Court equated the power of eminent domain with the police power and reasoned that “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation . . . .” Similarly, in Hawaii Housing Authority v. Midkiff (1984), the Court unanimously stated that it “will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause.”

The Supreme Court thus conflated “public use” with “public purpose” more than 60 years before Kelo. And although doing so contravenes the text and spirit of the Constitution, the Kelo Court was also content to defer to the City’s judgment. It did so, however, without relying on the exceedingly broad language of Berman and Midkiff.

Noted constitutional and property law professor Ilya Somin recently addressed these issues in recent articles in the Washington Post and the Connecticut Law Review. Professor Somin contends that Kelo is “part of the legal mainstream” because it gives a “reasonable and long-accepted reading” of the Fifth Amendment. Such status is not sufficient to give the Supreme Court a pass, however. Professor Somin argues convincingly that:

“ ‘reasonable and long-accepted’ and ‘part of the legal mainstream’ is not the equivalent of correct or logically sound reasoning. Many of the Supreme Court’s worst decisions were based on reasoning that, at the time, was long-accepted and within the mainstream . . . . Historically, most of the Supreme Court’s worst decisions were not rulings that departed from the then-dominant mainstream, but rather cases where the mainstream itself went wrong. So it is with Kelo and the earlier public use precedents it relies on.”

Professor Somin points out that “the Supreme Court’s adoption of an “ultra-broad” definition of “public use” in the 1950s helped set the stage for blight and economic development takings that have forcibly displaced hundreds of thousands of people.” He also explains how that broad definition is inconsistent with both “originalism” and the “living constitution” theory. “Originalism” requires a narrow definition of the term “public use” wherein “takings must be limited to the condemnation of property for government-owned projects, or for private entities that have a legal duty to serve the entire public, such as public utilities.” A narrow definition of “public use” is also supported by “living constitution” theory, “which holds that the power of judicial review should be used to protect the poor, minorities, and other politically weak groups that cannot fend for themselves in the political process.”

Professor Somin’s articles shed important light on a proper understanding of the Kelo decision, and they make a compelling case that “it is bad enough to deserve severe criticism, and bad enough that the Supreme Court should overrule it as soon as possible.”


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use.  Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  For more information, visit