ABSTRACT
The negative public reaction to the United States Supreme Court’s decision in Kelo v.
New London,1 in which a five-Member majority refused to second-guess the motives
and methods of a redevelopment project for an economically distressed New England
city, over the protests of landowners who refused buy-outs and fought the assertion
that their property was then targeted for a “public use” taking, was as unexpected as
it was widespread. After all, this was the third time in a half-century that the Justices
had deferred to officials in the other branches of government who, in their supposed
wisdom, had decided to employ the sovereign power of eminent domain in order to
achieve highly defensible public policy goals. In 1954, a unanimous Court joined in
Justice William O. Douglas’s opinion in Berman v. Parker,2 allowing the District of
Columbia to use eminent domain as an urban renewal tool, over the objections of a
department store owner who wanted to stay in business instead of receiving payment
for the condemned property’s fair market value. Three decades later, in Hawaii
Housing Authority v. Midkiff,3 Justice Sandra Day O’Connor, writing for another
unanimous Court, refused to overturn the Hawaii Legislature’s decision to attack
“land oligopoly”4 by arranging for the “taking” of landlords’ property interests, which
were in turn transferred to tenants upon payment of compensation. Neither of those
earlier decisions, involving situations that were arguably as egregious and as far
from the text of the Fifth Amendment’s Takings Clause (“nor shall private property
be taken for public use, without just compensation”5) as was the factual context in
Kelo, resulted in public and political reactions that were in any way comparable in
breadth and intensity to the furor spawned by the decision in New London’s favor
that the Court announced on June 23, 2005.
