by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Coming soon to a cinema near you—you can make this happen; read on—is a bite-your-nails true-story thriller featuring heroes, villains, and a history-making struggle over . . . the Constitution’s Takings Clause. Next February 24, Little Pink House will win the Oscar for Best Picture if Hollywood’s political preening contains even a scintilla of sincerity about speaking truth to power.
In 1997, New London, Conn., was experiencing hard times. Its government decided, as governments always do, that it wanted more revenue. A private entity, the New London Development Corp. (NLDC), wanted to entice the Pfizer Pharmaceutical Corporation, which was about to introduce a popular blue pill, to locate a research facility on land adjacent to a blue-collar residential neighborhood. The city empowered the NLDC to wield the awesome, potentially life-shattering power of eminent domain if, as happened, it failed to persuade all the homeowners to sell for an upscale private development to “complement” Pfizer’s facility. Some, led by Susette Kelo (played by Catherine Keener, two-time Oscar nominee), refused. …
… To seize Kelo’s pink house, New London did not assert blight. Instead, it argued that “public use” is synonymous with “public benefit,” and that the public would benefit from Pfizer’s paying more taxes than would Kelo and her neighbors. During oral arguments, Justice Antonin Scalia distilled New London’s argument: “You can take from A to give to B if B pays more taxes.” In a dissent joined by William Rehnquist, Clarence Thomas, and Scalia, Sandra Day O’Connor warned that the decision’s consequences “will not be random”: Factions whose affluence makes them desirable taxpayers and whose political influence makes them politically potent will join governments in seizing the property of low-income citizens who are not as lucrative for local governments.
By getting the U.S. Supreme Court’s attention, and eliciting strong dissents that highlight the horribleness of the majority’s decision, Kelo and IJ ignited national revulsion that has produced new state limitations on eminent domain, limitations that reestablish the Framers’ intentions.