Remembering Susette Kelo v. City of New London
20 Years Later, the Fight to Protect Property Rights Continues
Many Americans have a vivid memory of where they were when they heard some momentous—often tragic—news, such as when a space shuttle exploded, the World Trade Towers collapsed, or the would-be assassin missed killing Donald Trump by an inch.
I well remember all of those. But another similar memory for me may not have resonated as much with others. That was the day, exactly 20 years ago—when sitting in my office near the Texas Capitol in Austin, I learned the U.S. Supreme Court declared it was constitutional for the city of New London, Connecticut to take Susette Kelo’s home to increase its tax revenue.
Clark Neily, at the time an attorney with the Institute for Justice (IJ) which represented Kelo in the case (he is now the Senior Vice President for Legal Studies at the CATO Institute), explained the effects of the Kelo decision:
As a result of this decision, every home, every church and every small business is now up for grabs to the highest bidder. According to a narrow majority of the Court, the mere possibility that private property might make more money when put to another use is reason enough for the government to take it away.
The magnitude of the effect the decision had on me may seem odd to some, but in my new job as the director of the Texas Public Policy Foundation’s Center for Economic Freedom I was shocked that such a gross violation of the U.S. Constitution and Western civilization’s long-standing support for private property rights would be sanctioned by America’s highest court. I was not the only one who felt this way, however.
Scott Bullock, the current president of IJ, argued the Kelo case for IJ before the Supreme Court. He recently wrote about the effect the case had across the country:
Without question, Kelo received more universal condemnation than any other decision issued by the Supreme Court in modern times. Most Court decisions in recent memory reflect the divided, near 50/50 split in the country today. Not so with Kelo. It didn’t matter where you lived, what ideology might you believe, your racial or ethnic background, and so on—polls demonstrated over and over that people were overwhelmingly opposed to the majority opinion in Kelo and wanted something done to prevent such takings from occurring in the future.
Perhaps the primary factor behind the nationwide response to Kelo was that many people understood that the same thing could happen to them. New London took the homes of Susette and her neighbors in partnership with Pfizer so the company could build a pharmaceutical research facility without having to purchase the property needed for it. Of course, Pfizer later became infamous for its partnership with the federal government in developing its suspect COVID-19 mRNA vaccine, but even back then many Americans were beginning to recognize the dangers of the cozy relationships major corporations were developing with local, state, and federal governments. It was this realization and related issues that soon led to the 2010 Tea Party revolt and later to the 2016 election of Donald Trump.
A deeper issue, though less well understood, is how the Kelo decision dismantles the institution of private property first laid out in Genesis 2. Earlier, God had told humanity—through Adam—to be fruitful and multiply, to fill the earth, and to exercise dominion over it. Then, when He gave them for food every tree of the garden except one, He also gave them the tool of private property which would enable them to successfully exercise dominion. The one tree was His property and if they respected His rights in that property, all would go well with them in their endeavor. We know how that story turned out. The biblical institution of property rights is deeply embedded in the laws of Western Civilization and the United States, though we are still struggling to learn the lesson Adam and Eve taught us.
This was the case with the Pilgrims when they first arrived in America. They abolished private property rights in the land, turning to socialism to feed themselves. As a result, many of them starved to death; it wasn’t until William Bradford abandoned communal ownership of land for private property ownership that their fortunes were restored. There are also the 10 million or more Russians and Ukrainians who died in the 1920s and 1930s as the Soviet Union abolished peasant farms and instituted large, state-controlled collective farms (kolkhozes). The Bible and history inform us that we cannot prosper as a people if we do not protect property rights.
It did not take long after the Kelo decision for Americans to go to work to overturn it. Steven Anderson, who was with IJ at the time but is now president of the Pacific Legal Foundation (PLF), recounts what happened in the aftermath of Kelo:
We mobilized our grassroots network and began working closely with state-based allies in a campaign (called Hands Off My Home) to ensure that states would provide greater protection against this abuse than under the federal constitution. Which is the beauty of our system—the U.S. Constitution provides a floor of protection, and states can provide more. And that’s what happened. We barnstormed the country, working with state legislators and members of the executive branch in reaction to the Kelo decision. All told, more than 40 states changed their statutes or constitution to prevent what happened to the folks in New London from happening there.
Along with others across the state—and with great help from IJ, I was part of this response in Texas. Sadly, the opposition to our reform efforts was strong. Local governments, state bureaucrats, and Democrats and even many Republicans in the Texas Legislature opposed our efforts. It took four legislative sessions over six years to get many of the reforms we fought for into Texas law; the opposition used delaying tactics to water down some of our proposals. Nonetheless, Texans’ property rights are safer today than they were before Kelo.
Yet the fight for property rights in Texas is not over. Since Kelo, the city of Dallas forced Hinga Mbogo to close his auto repair shop on Ross Avenue because the city council and the Bryan Place Neighborhood Association was not pleased with the curb appeal of his shop and nearby used car lots, wanting to replace them with businesses like “Starbucks and the Macaroni Grill.” Similarly, the city of Rowlett condemned the property of a retail property owner in order to build a driveway for a nearby property owner who wanted to improve customer access for its tenant, a Sprouts grocery store, but was unwilling to pay for the driveway. Both takings were upheld not by the U.S. Supreme Court but by the Texas Supreme Court. Which shouldn’t surprise us, since that court has proclaimed, “Property owners do not acquire a constitutionally protected vested right in property uses.”
There is also more work to be done at the federal level. The U.S. Supreme Court recently “declined to hear [IJ’s case,] Bowers Development, LLC v. Oneida County Industrial Development Agency (OCIDA), a case challenging the infamous 2005 eminent domain decision Kelo v. New London.” Robert McNamara, IJ’s deputy litigation director, explained the problem but is optimistic that the battle is not over:
The Court declined this opportunity to restore some basic protections for American property rights, but it will have to confront this question eventually. Eminent domain abuse continues to run rampant in New York and some other states that have refused to change their laws, and it will not stop until federal courts return to enforcing the Constitution.
His optimism is echoed by Bullock:
One of the things I remember most about Kelo was the remarkably brave stand the clients took in the case. Susette’s iconic little pink house was the embodiment of what can be accomplished when a person, even someone lacking political power and resources, stands up for their rights and the rights of everyone else. Even though Susette and her neighbors were very disappointed to have to leave their beloved homes and neighborhood, they are rightly proud of what they accomplished for so many other homeowners throughout America.
Despite setbacks, the fight continues with victories such as PLF’s recent successes against “home equity theft.” Susette and her neighbors provided us a model for how we can eventually defeat the progressive left’s assault on our rights, no matter which political party is embracing its socialist, anti-biblical ideas. Given Susette’s stamina, determination, and optimism—and the expertise of groups like IJ, PLF, and CATO, we will continue restoring our property rights and a free and prosperous America.