by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In a recent Legal Update, I discussed a notorious case, Kelo v. City of New London, in which the U.S. Supreme Court upheld the use of eminent domain to take working class citizens’ homes and give the land to a private corporation for “high-end” commercial development. As I explained, the decision brought two serious but previously little-known problems to the attention of the American public:
Regarding the first of those problems, the situation has changed considerably since the decision was handed down in 2005, not because of any changes at the federal level but because most states responded to Kelo by changing their own statutes and constitutions in ways designed to protect their citizens from eminent domain abuse.
Regarding the second problem, however, the situation hasn’t changed at all. In Kelo, the court held that, notwithstanding the “public use” requirement implicit in Fifth Amendment’s Takings Clause, state and local governments are free to transfer property from one private party to another as long as doing serves a “public purpose.” Significantly, the court also held that the question of whether any particular transfer actually serves a public purpose is not something that should be addressed by federal courts. Instead, those courts should give state and local governments “broad latitude” to decide for themselves “what public needs justify the use of the takings power.”
Despite being one of the Supreme Court’s most despised decisions, Kelo remains the law of the land, and its author, former Associate Justice John Paul Stevens, believes it’s going to stay that way. Stevens was appointed by President Ford in 1975 and served on the court for more than 34 years before retiring at the age of 90 during President Obama’s first term. He’s almost 100 now, but he’s still an active public figure. This month, he published an op-ed advocating gun control, told an interviewer he was worried about President Trump’s judicial selections, and he released a memoir about his years at the Supreme Court called, The Making of a Justice: Reflections on My First 94 Years.
In a recent review of Stevens’ memoir, Damon Root summarizes the former justice’s response to those who have criticized his Kelo opinion:
Stevens’ principal defense of Kelo is that he had no choice, that his hands were tied. For one thing … the Supreme Court “had a duty to give deference” to “the state courts’ evaluation of the particular development plan that gave rise to the litigation.” He is referring to the Connecticut Supreme Court’s 2004 decision allowing the use of eminent domain to proceed against Susette Kelo and a number of her neighbors. …
Stevens also insists that he had a “duty to give deference” to the state legislature and the eminent domain law that it passed. … Kelo is valid because it “adhered to the doctrine of judicial restraint” and was rooted in “Justice Oliver Wendell Holmes’ broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation.”
Although Holmes originally proposed it in 1905, the court actually assumed the duty of deference to which Stevens refers in the 1930s, and it only did so because President Roosevelt had threatened to pack the court with more compliant justices if it didn’t. Over the years, the doctrine of judicial deference has developed into a complicated hierarchy of rights with a different standard of scrutiny assigned to each of the various levels. Laws dealing with a small number of particularly sensitive issues like freedom of speech and racial discrimination are subject to “strict” scrutiny laws, another small group of slightly less sensitive issues (such as abortion) is subject to “intermediate” scrutiny, and all other laws are presumed to be constitutional unless it is utterly inconceivable that they rest “upon some rational basis.
In recent years, one member of the court, Clarence Thomas, has raised doubts about the doctrine of judicial deference. In a previous Legal Update, I quoted this passage from his dissent in Whole Woman’s Health v. Hellerstedt:
The Constitution does not prescribe tiers of scrutiny. … But the problem … goes beyond that. … The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not…. A law either infringes a constitutional right, or not…. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.
In my view, Thomas is absolutely right about that, but, unfortunately, so far no other member of the court has been willing to consider such a radical departure from long-standing and far-reaching precedent. It appears, therefore, that the doctrine of judicial deference – and the Kelo holding – will be with us for the foreseeable future.
The fact that Kelo will continue to be good law doesn’t really matter much for most states because, as noted above, most states have taken steps to protect their citizens from eminent domain abuse under state law. Unfortunately, North Carolina is one of the few states that hasn’t taken such steps, so it should matter to us. We need robust protection against eminent domain abuse in North Carolina, and, to its credit, ever since the Kelo decision was handed down in 2005, the N.C. House has been trying to ensure that we get it.
When I wrote about this topic back in March, the House had just passed its seventh eminent domain reform bill and sent it to the N.C. Senate. The Senate should take up that bill and use it to give us the protections we need.
(Members who are interested in doing that can find a detailed discussion of what an ideal eminent reform bill would include in the Eminent Domain section of JLF’s guide to North Carolina Policy Solutions.)