The Government Came for Her House

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The independent movie Little Pink House hasn’t come to my city yet, but I’m looking forward to it. Please consider attending. Based on Jeff Benedict’s book of the same name, I can’t tell you if the film is any good; I can tell you, though, that it gives the background to a 2005 US Supreme Court decision that was a notable and dangerous authorization of government overreach.. The movie and book are about Kelo v. New London, the Supreme Court Case broke new ground on the concept of eminent domain. In a decision that didn’t break liberal v. conservative, but rather, pro-big government versus anti-government, Justice Anthony Kennedy joined the typically big government bloc on the Court to reinterpret the ‘Takings Clause’ of the Fifth Amendment. The Court ruled 5-4 that land could not only be expropriated for public use, but also for the public good. The case saw the City of New London seek to take and raze a neighborhood so that Pfizer Corporation could use the land to build new facilities. Presumably, city tax revenues would rise once Pfizer occupied the land.

Susette Kelo was ultimately forced out of her little pink house, and her neighbors lost their properties, too. The City’s dream development was never built, and the area has since been over-run by a swarm of feral cats.

Justice Sandra Day O’Connor wrote the principal dissent and pointed out in oral arguments the gravest danger in what became the majority’s ruling: that the government wasn’t taking land for its own use, but instead to favor one private group (Pfizer) over another (the current landowners). Justice O’Connor asked the City’s lawyer if it would be OK to take and bulldoze a Motel 6 so that a Ritz Carlton (which would presumably generate more tax revenue, here the ‘public good’) could be built in its place. The City’s lawyer said yes.

Justice O’Connor wrote: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

Putting it more succinctly in a separate dissent, Justice Clarence Thomas wrote: “Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”

The case ended poorly for the plaintiffs: when the Supreme Court denied a petition for re-hearing, the City seized their homes and even tried to retroactively charge them for ‘rent’ of the land while the case wound its way through court. The good news is that people across the political spectrum were listening. The NAACP, Rush Limbaugh, Ralph Nader, and the American Conservative Union, among others, were disgusted. Ilya Somin, Professor of Law at George Mason University, points out in his book The Grasping Hand that since the Kelo decision, over 40 states have passed laws restricting states’ and cities’ eminent domain rights with regards to taking property from one private owner to pass it to another.

Somin further points out some things that work in favor of the Supreme Court one day reversing itself on Kelo:

  • Popular discontent
  • The political reaction from an overwhelming majority of states
  • The ruling was 5-4
  • Justice John Paul Stevens unusual admission in 2011 that his majority vote was partially based on an “embarrassing to acknowledge” misreading of legal precedent.

Unless and until that day comes, legislative battles will continue at the state and local levels—and we can check out the movie that dramatizes the fight.

If you'd like to see the movie, the showtimes can be found here