Your home may be your castle, but the government can take your castle and give it to someone else if that someone else intends to turn it into a strip mall and office space.
That rule is in the Constitution, according to the Supreme Court’s 2005 decision Kelo v. City of New London. The court claimed to discover that rule in the Fifth Amendment’s proscription, “nor shall private property be taken for public use, without just compensation.” Public use includes more than roads, bridges, and military bases, the court’s five liberals held, it also includes private development that might lead to economic growth. And on that basis, the justices handed over Suzette Kelo’s little pink house to a developer who had big plans but no ability to deliver.
Twenty years after their decision, the land where Suzette and her neighbors’ old homes once stood remains a barren lot. Perhaps that will change someday, and perhaps the Kelo decision will change too.
A new lawsuit by the Institute for Justice, which fought for Suzette, offers the Supreme Court a chance to change its mind about whether public use includes private development.
The case is Bowers v. Oneida County Industrial Development Agency, and the facts are these: Bowers Development was under contract to buy a plot of land in Utica, New York, next to a new hospital, on which it planned to build medical offices. Another development company, Central Utica Building, however, also wanted to build medical offices near the new hospital. Rather than compete with Bowers, Central Utica asked the government of Oneida County to condemn the land and give it to them, which the government did. Central Utica then turned the land into a parking lot.
Bowers argues that what Oneida County did in this case was far beyond what even Kelo permitted. Yes, Kelo’s definition of public use is broad, but a parking lot is not a strip mall and offices; it provides a purely private benefit to a private party and no economic growth potential.
That argument is admittedly hard to win under Kelo. As Justice Clarence Thomas (joined by Justice Neil Gorsuch) has written elsewhere, Kelo “makes it difficult to discern public use from private favors.” Many lower courts do not even bother trying to draw a line. Any time a local government takes land from one person to give it to another, those courts reflexively defer to the government’s assertion that the taking is for public use.
No surprise, then, that Bowers also argues that Kelo should be overruled. Even the fairest reading of Kelo cannot be squared with the Founders’ vision of the Fifth Amendment, it argues, with support from constitutional scholars.
Oneida County fires back at Bowers with an acid-tongued brief. It claims that Bowers is a “jilted property development company” with “bruised feelings” engaged in a “spiteful gambit.” What Bowers is really doing, says the county, is selfishly blocking “strong government efforts” to revitalize a depressed town. It assures the court that a parking lot “provides just as much ‘public use’ as the thousands of early nineteenth century takings for private roads, railroads, and ferries.”
Oneida County is keenly aware of Kelo’s unpopularity. Its argument opens, “This case is not about a little pink house.” But, of course, it is. For a legal rule that destroyed a little pink house for a developer can be destroyed by a developer to save the next little pink house. After all, pink houses are to medical offices as geese are to ganders, where the law of taking is concerned.
But the meaning of the Fifth Amendment is not now and has never been very important to the authors of Kelo’s private-development-is-public-use rule. The majority opinion in Kelo devoted not a drop of ink to the question of the meaning of the Fifth Amendment. Instead, its rule was based on 20th century caselaw built atop two unstated but sincere beliefs: that the government knows how to order an economy, and that the government is unlikely to use its taking power to reward its favorites.
The credibility of those beliefs is disputable. History books abound with examples of destructive government projects tending to undermine the first, and the court reports abound with examples of corrupt dealings tending to undermine the second. That said, Bowers has wisely chosen not to fight its case on that ground because a court of law is no place to argue about economic theories.
A court of law is a place to argue about what the law means. So the court’s job in Kelo, which it ignored, was to determine what public use means, not what public use ought to mean. And because we are a nation with a written charter changeable not by judges but by the people who gave their consent to it, what public use means today is what it meant when it was inked onto that charter, unless the people have changed that charter in writing.
Perhaps the Founders really did intend to give local governments the power to redistribute land for private development (although the weight of authority leans against it). But Kelo does not tell us anything about that. Kelo did not even attempt to answer that question. That failure alone is reason enough for the court to take Bowers’s case, even if it concludes that public use does mean private development.
Whether the court will take Bowers’s case, however, is uncertain, perhaps unlikely. Four years ago, another landowner offered the Supreme Court an opportunity to correct its Kelo error, but the court refused to hear the case. Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh would have heard it, but four votes are needed. The three liberals can reliably be counted on to support Kelo, but whether the remaining three—John Roberts, Samuel Alito, and Amy Coney Barrett—think Kelo’s error is worth correcting is anyone’s guess.
