Justice Stevens Adds Fuel to the Fire Over the New London Eminent Domain Case

By MICHAEL C. DORF
Monday, Aug. 29, 2005

Speaking to a bar association meeting in Las Vegas last week, United States Supreme Court Justice John Paul Stevens confessed that he thought one of his own recent opinions, though correct as a matter of law, was wrong as a matter of policy. Stevens authored the majority opinion in Kelo v. City of New London, which upheld the forced sale of private homes to a commercial real estate developer. Yet he commented at the meeting that his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program."

It seems that no one has a kind word to say for the Kelo decision. Already, Congress and the states have sought to limit the power of eminent domain. Meanwhile, outraged, if not necessarily entirely serious, citizens in New Hampshire have been urging elected officials to force the sale of properties owned by two of the Justices in the Kelo majority, David Souter and Stephen Breyer.

Perhaps Justice Stevens's speech was a clever ploy to appease Kelo critics who might target his own property. Don't blame me, he appears to be saying: I was just following the law.

But of course, that explanation won't quite wash. Kelo was decided by a 5-4 margin, so there was obviously enough wiggle room for a Justice who thought the New London program unwise also to find it unconstitutional.

So why did Justice Stevens rule for the city in Kelo? I believe it's because, in his judgment, the interpretation of the Constitution permitting redevelopment programs such as New London's is sensible, even though the particular New London program of property acquisition was unwise.

What Justice Stevens Said About Medical Marijuana

In addition to Kelo, Justice Stevens gave another example of a decision he had authored in the Court's last Term whose result he lamented as a matter of policy. In Gonzales v. Raich, the Court upheld the federal law banning the cultivation of marijuana, even as applied to marijuana grown and consumed in California for medicinal purposes pursuant to a state law purporting to make such activity legal. Justice Stevens made clear in his oral remarks--as he had in the Raich opinion itself--that the Court's decision to uphold the federal law did not mean that he (or the other Justices) thought it was a good idea for the government to ban medical marijuana.

But the case did not present the question whether banning medical marijuana is a good idea: the issue was whether Congress has the power to enact such a ban. Seeing no principled way to give a negative answer to that question without thereby undermining Congressional ability to regulate the national economy in the interest of the country as a whole, Justice Stevens reluctantly concluded that the federal marijuana prohibition validly trumped the state authorization for medical marijuana.

The Difference Between Undesirable Results and Undesirable Rules

Before returning to the Justice's comments regarding the Kelo case, it is worth drawing an important distinction. Judges and Justices sometimes must apply constitutional or other legal rules that they think are generally unwise.

For example, a reasonable person could think that jury trials in civil cases are a waste of resources: they increase the length of trials, inconvenience people called to serve as jurors, and often give to laypeople the task of resolving highly technical questions for which they have no training or expertise. Hence, the civil jury trial has been abolished in England, where it originated, and curtailed in many states in this country.

At the federal level, however, the Seventh Amendment expressly guarantees a right to a jury trial in federal court in most civil cases for monetary damages. Accordingly, a judge or Justice sworn to uphold the Constitution must find a right to jury trial in such cases, even though, were it up to the particular judge or Justice, he or she would personally favor amending the Constitution to eliminate or modify the Seventh Amendment.

But notice that Justice Stevens did not say of the cases interpreting the Commerce Clause what my hypothetical judge or Justice says of the Seventh Amendment. Justice Stevens did not say: "It's too bad Congress has broad power to regulate the interstate economy. I wish it didn't, but I'm stuck with the text we have."

What Justice Stevens in fact said was nearly the opposite. He approves of broad Congressional power, so much so that he thought the Court's "duty to uphold the application of the federal statute" in Raich "was pellucidly clear." It was unfortunate, he thought, that Congress had chosen to exercise its broad power to reach even medical marijuana, but it was highly desirable that the power be Congress's to decide whether to exercise.

What Justice Stevens Said About Eminent Domain

Justice Stevens said nearly the exact same thing about the power of eminent domain. He thought it was unwise for New London and other municipalities to force sales of private homes for economic development of distressed neighborhoods. If Justice Stevens were a member of the relevant local government, his preference would be for market mechanisms: If there really are economic opportunities locked up in the property of private homeowners, let the developers pay the homeowners for their property in private sales. Or, as Justice Stevens put the point in his speech: "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials."

But that policy preference is not itself a constitutional principle. The relevant constitutional language (in the Fifth Amendment) states that "private property" shall not "be taken for public use, without just compensation." By implication, private property cannot be taken at all (even with the payment of just compensation), if it is for a non-public use.

And what could be a less public use, the petitioners in Kelo asked, than giving the land acquired from a homeowner in a forced sale to a private commercial developer? This, in their view, is simply a forced transfer from one private entity to another--a private use, not a public one.

Why the Kelo Rule Serves Principles of Free Enterprise

Although economic libertarians have been among the most vocal critics of the Kelo decision, as we shall see, the most persuasive answer to the foregoing question actually relies on principles that are, or ought to be, dear to those very economic libertarians.

Long before the Kelo decision itself, the Supreme Court had said that "public use" in the Fifth Amendment does not require that the government actually retain title to the property it takes pursuant to the eminent domain power; instead, the government can use its economic domain power to transfer title to another entity, even a private one. And for good reason.

It is nearly an article of faith with economic libertarians that the free market delivers goods and services more efficiently than the government. This isn't universally true, of course. For example, Medicare, the government-run health insurance program for older Americans, is much more efficient than private-sector health insurance. But certainly there are domains in which the profit motive leads private enterprises to run more smoothly than government programs, and more importantly, elected officials should be permitted to choose to rely on private providers of goods and services when they deem it wise to do so.

But now look what happens under the approach favored by many of the Kelo critics. Suppose that a city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price. Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

If you think it does make sense, suppose the city itself builds the stadium. Is it forbidden from ever selling the stadium to a private party? If not, how long must the city wait before making such a sale before facing litigation contending that its temporary ownership of the property was merely a pretext for a Takings-Clause-violating private-party-to-private-party transfer?

What about other public works? Eminent domain has frequently been used to construct transportation facilities such as railroads. Must these be forever state-run for the initial forced sale to be valid? Given the vocal criticism that economic libertarians (and others) have leveled against Amtrak, do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain?

Or take the use in Kelo itself. A city intent on redeveloping a neighborhood can still obtain title to the property of homeowners under the approach of the Kelo critics, so long as the city itself, through a government bureaucracy, undertakes to construct, own, and run the buildings and businesses in the new development.

That leads to an interesting contrast: The actual Kelo rule sensibly leaves to the discretion of local elected officials the decision whether to pursue public aims that require the use of the eminent domain power through private enterprise or through state agencies. But the Kelo critics favor a rule that would permit such projects only under the auspices of the government. That is a peculiar position to champion in the name of the free market, to say the least.

Corruption and Spite: Fear of the Government's Motivation for Private-to-Private Transfers

The Kelo critics have one more arrow in their quiver, however. They worry that permitting the government to force sales, and then transfer property to private hands, will tempt local officials to make sweetheart deals with wealthy corporations and persons, while overriding the property rights of people who just want to remain in their homes.

There are at least four answers to this worry. First, the requirement of just compensation ensures judicial scrutiny of the forced sale. Indeed, the opportunities for corruption arising out of the eminent domain power are fewer, not greater, than the opportunities provided by the exercise of local contracting and taxing authority. Unlike the use of the eminent domain power, the use of the powers to enter into contracts and impose taxes do not trigger the protections of any specially-tailored constitutional provision.

Second, although Kelo was the first Supreme Court case in which a private home was taken in a forced sale to be conveyed to a private developer, the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades. Yet there is little evidence of widespread abuse of the power.

Third, it may be true that publicity surrounding the Kelo decision itself has awakened some local officials to the extent of their eminent domain powers--as suggested in a column for this site by Douglas Kmiec. Yet, at the same time, that publicity has sparked an even greater response in the other direction; local, state and national politicians eager to keep their jobs will not lightly use their eminent domain power, now that they see the intense public hostility towards forced sales of homes to private developers.

Fourth and finally, the Fifth Amendment's Takings Clause is not the only constitutional protection for homeowners. If a state or municipality were to exercise its eminent domain power to force the sale of property simply to spite the owner, it would run afoul of the principle that singling out a property owner on such grounds denies equal protection of the laws. That principle is stated clearly in the Court's terse unsigned opinion in the 2000 case of Village of Willowbrook v. Olech, which the Kelo opinion favorably cited in a footnote.

Accordingly, Justices Souter, Breyer, Stevens, and the other members of the Kelo majority need not fear retaliatory forced sales of their property. Nor, thankfully, do I--so if you are one of the millions of Americans who are outraged by the Kelo decision, don't waste your time in a futile effort to persuade the government to buy my home; just send me an incensed email explaining why you think I'm a fool. It's your First Amendment right, after all.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.

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