Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights | State Court Report

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Economic and Labor Rights

Judicial Interpretation

Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights

Twenty years after Kelo v. City of New London, there has been much progress, but abusive takings continue in many states.

By

Ilya Somin

Published: June 23, 2025

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Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private “economic development” is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a “public use.” Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.

This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution.

In Kelo, New London, Connecticut condemned 15 residential properties as part of an ill-conceived development plan that eventually failed miserably, such that for many years, the condemned property was used only by feral cats. The condemnations were upheld by a closely divided 4–3 Connecticut Supreme Court ruling, and later by a similarly close 5–4 decision of the U.S. Supreme Court. Kelo exemplified the tendency of private-to-private takings to benefit the politically influential at the expense of the politically weak — while destroying more economic value than they create.

In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I argue that Kelo was wrong from the standpoint of both originalism and a variety of living constitution theories. Justice John Paul Stevens, author of the Court’s majority opinion, later admitted his reasoning was based in significant part on an “embarrassing to acknowledge error” in interpreting precedent (generously citing me as a “scholarly commentator” who “caught this issue shortly after we decided Kelo,” in an article I published in 2007).

Here, I focus not on the decision itself, but on lessons that can be learned from the political and judicial reaction to it in the states. Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history. Some of the new laws were ordinary statutes, and others amendments to the state constitution, often enacted by referendum. Several state supreme courts repudiated Kelo as a guide to the interpretation of their state constitutional public use clauses, holding that economic development takings are unconstitutional.

In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court’s interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.

The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests. But “blight” and “urban renewal” takings had been used to forcibly displace hundreds of thousands of mostly poor and minority people from the 1940s to the 1970s (an awful history covered in Chapter 3 of my book). Most lawyers and academics believed the issue of “public use” had been settled by Berman v. Parker, a terribly reasoned 1954 Supreme Court decision concluding that a public use could be virtually anything the legislature says it is, thereby upholding urban renewal takings that displaced thousands of mostly Black residents...