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Second Thoughts on Kelo

A proper understanding of property rights suggests that the Kelo decision wasn't so bad after all.

12:00 AM, Jul 5, 2005 • By JOHN HINDERAKER
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THE SUPREME COURT'S DECISION in Kelo v. City of New London has sparked a great deal of comment, most of it critical. Conservatives, in particular, have denounced Kelo's holding that economic development projects are a "public use" that municipalities and other government units can use eminent domain to carry out. George Will's analysis was representative:

The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes.

Many conservatives seemed to enjoy waxing populist over the decision; Pfizer, Inc. was a popular target. Pfizer-bashing started at the top. Justice Thomas, writing in dissent, said that the majority held, "against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'" Justice O'Connor, also dissenting, echoed the theme: ". . . any boon for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in taxes and jobs." And the Washington Times editorialized:

City officials sought to lure Pfizer there to build a $300 million research facility with the understanding that the surrounding parcels of land could be developed into an upscale complex of residences along with a marina, hotel and conference center. . . .The city argues that because Pfizer can pay more taxes, and because it can provide more jobs, it will make better use of the Ft. Trumbull properties than the ordinary people who currently own them.

In fact, however, Pfizer has little or nothing to do with the New London project. In February 1998, Pfizer announced that it would build a global research and development headquarters on a site in New London that was then used as a garbage dump. It was after Pfizer's announcement that the city decided to embark on a redevelopment project that would include land near Pfizer's. Pfizer completed construction of its research and development headquarters four years ago; its project was in no way contingent on the city's separate redevelopment efforts. Pfizer--whose spokesman noted that the company's role in the New London condemnation case has become an "urban legend"--has no involvement in the Kelo case, no interest in the property at issue, and has never supported either side in the controversy.

In reality, the New London economic development project is similar to efforts that hundreds of towns and cities have made to revitalize aging or depressed neighborhoods. Focused on a 90-acre area called Fort Trumbull that is comprised of both publicly and privately owned land, the project includes a typical mix of public and private uses: a pedestrian "riverwalk," a waterfront hotel and conference center, marinas for recreational and commercial uses, a new Coast Guard Museum, new residences, and an industrial park to which the city hopes small biotechnology companies will be lured by Pfizer's nearby research facility. The city created the New London Development Corporation ("NLDC") to carry out the Fort Trumbull project, and, as is usual in such cases, gave the NLDC powers of eminent domain to acquire the necessary parcels of land. The NLDC was able to negotiate purchase agreements with most landowners, but a few refused to sell and ultimately commenced the litigation that reached the Supreme Court.

Fort Trumbull is such a typical mixed-use municipal development project that it is a little hard to understand the significance that commentators have given to the Court's decision. The issue before the Court was phrased very broadly by the majority: "We granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Amendment." Thus, if the minority had prevailed, no municipality in America could condemn any property in order to carry out an "economic development" project. This would have the practical effect of making such projects virtually impossible.