an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
JB: Many people will assume that there is an originalist case
against government taking property for private uses. But a really interesting
feature of your book is that you make a living constitutionalist case against Kelo
as well. That may surprise people who identify living constitutionalism with
post-New Deal judicial restraint on issues of economic and property rights.
What is the book's message for living constitutionalists?
Ilya Somin: It is indeed true that many living constitutionalists oppose
all but the most minimal judicial protection for property rights and economic
liberties. But that conclusion is not required by the logic of living
constitutionalism, itself. Quite the opposite, in fact, especially in this
For example, one of the most prominent versions of living
constitutionalism is “representation-reinforcement,” the idea that judicial
review should be used to protect “discrete and insular minorities” who lack the
influence to protect themselves in the political process. Historically, most of
the victims of blight and economic development takings licensed by a broad
interpretation of public use are poor, racial minorities, and others lacking in
political power. Most of the millions of people forcibly displaced by eminent
domainsince the Supreme Court endorsed
a broad definition of public use in 1954, fall into those categories.
Many of those displaced by eminent domain end up having to
leave the community entirely, and so are not even around to vote against the
politicians that took their homes, at the next election. In that respect, they
are even more disadvantaged in the political process than many of the groups we
more traditionally associate with representation-reinforcement.
In the book, I explain why Kelo and its precursors should be rejected under several other
well-known versions of living constitution theory, as well. I also give what I
think is the most thorough explanation to date of why Kelo is wrong from the standpoint of originalism, incorporating
many recent innovations in originalist constitutional theory.
JB: You also point out that several liberal groups and groups
that traditionally defend the interests of minorities opposed New London in the litigation. What were their
concerns about eminent domain?
Ilya Somin: Several leading liberal groups and activists filed amicus
briefs supporting the property owners in Kelo,
or spoke out against the decision. They included the NAACP, the Southern
Christian Leadership Conference, and Ralph Nader, among others Their opposition
was motivated by the reality that blight and economic development takings tend
to target the poor and racial minorities, often for the benefit of politically
influential business interests. As
Hilary Shelton of the NAACP put it in testimony before the Senate Judiciary
Committee, “allowing municipalities to pursue eminent domain for private
economic development [has] … a disparate impact on African Americans and other
minorities.” For example, the urban renewal takings that Jane Jacobs
fought against were often referred to as “Negro removal.”While overt racism is rarely a factor in more
recent condemnations of this type, the minority poor are still
disproportionately affected, in part because their relative lack of political
influence makes them easy targets.
JB: It struck me in reading your book that the use of eminent domain for private
development has a different political valence from many other constitutional
defenses of economic liberty. The people raising the constitutional claims were
individual homeowners, while large business interests were mostly allied with
city planners and government officials on the other side. Do you agree?
Ilya Somin: To some extent. As I stress in the book, most of the people
forcibly displaced by economic development takings are politically weak
homeowners, renters, and small businesses. While it would be an overstatement
to say that big business interests generally support such condemnations, some
of them are clearly among the beneficiaries, while the others are at least
relatively unlikely to have their land condemned. The National Federation of
Independent Business, the leading national small business group, has been
active in opposing Kelo, while big
business groups usually either ignore the issue, or even support economic
development takings – as do some “pro-business”Republicans, such as former Mississippi
governor and Republican National Committee Chair Haley Barbour.
That said, many other constitutional property rights and
economic liberties cases also involve regulations that harm homeowners,
consumers, or small businesses for the benefit of the politically connected.
For example, the Institute for Justice, which litigated the Kelo case, also challenges restrictive
licensing laws that make it difficult for the poor to enter such professions as
interior decorating, serving as a tour guide, and even African hair-braiding –
often for the purpose of protecting politically influential incumbents against
JB: The book also features a popular constitutionalist take on Kelo. What
was the public reaction to Kelo? To what extent did people object
to the decision on constitutional grounds as well as policy grounds?
Ilya Somin: Polls showed that over 80 percent of the public oppose the Kelo decision, and this opposition cuts
across racial, ideological, partisan, and gender lines. Since many of these
polls asked about respondents’ opinions on the Supreme Court decision, and not
simply about the policy of condemning property for “economic development,” it
is likely that the opposition was on constitutional grounds, as well as policy.
Popular constitutionalists typically cite the civil rights
movement, the feminist movement, the gun rights movement, and – most recently –
the gay rights movement as examples of popular constitutionalist mobilization
that achieved broad enough support to justify reshaping constitutional doctrine
to meet their concerns. But the opposition to Kelo and economic development takings was actually even broader and
more widespread than the support achieved by any of these movements. If there
ever was a case that should be overturned based on popular constitutionalism,
it is this one.
Admittedly, many of the ordinary people opposed to Kelo probably do not rigorously
distinguish between constitutional and policy considerations, and even more
probably don’t know much about the legal issues involved. But, given the
ubiquity of political ignorance, that is also true of many adherents of every
other popular constitutional movement.
I am not a popular constitutionalist myself, and I don’t
believe that the popular opposition to Kelo
does much to prove that the ruling was wrong. But that opposition is surely
relevant from the standpoint of popular constitutionalism.
JB: Popular views about the Constitution often affect constitutional law through
judicial appointments as well as through litigation. Has either of the two
major political parties made overturning or modifying Kelo an important
agenda item in judicial appointments?
Ilya Somin: Politicians in both parties have denounced Kelo. But so far, neither has made it a
major focus of judicial confirmation battles. However, I did get called on to
testify on public use issues at the Senate confirmation hearings for Justice
Sonia Sotomayor (who had been part of a panel that made a very dubious
post-Kelo public use decision while serving as a lower court judge). In and of
itself, this wasn’t all that significant. But it was the first time in many
years (possibly ever) that a witness at a Supreme Court confirmation hearing
had been called on to testify specifically about property rights issues. That
would not have happened before Kelo.
When and if there is another Republican president, it is
very possible that property rights issues – including public use – will play a
bigger role in screening potential judicial nominees than in the past. Many
Republicans – particularly more libertarian-leaning ones – were and are angry
about the role of GOP-nominated Supreme Court justices inthe Kelo
majority (most notably Justice Stevens, author of the majority opinion, and
Justice Kennedy, author of a crucial swing-vote concurrence).
JB: Do you think that the state courts construing their own constitutions have
responded in a helpful way to the Kelo decision?
Ilya Somin: For the most part, yes. The state supreme courts of Ohio, Oklahoma, and South Dakota have all
repudiated Kelo as a guide to the
interpretation of their state constitutions, ruling that “economic
development”takings are banned by their
respective state public use clauses. Several other state supreme courts have
rejected important elements of Kelo,
even if they have not decided the economic development question directly.
This generally hostile reception contrasts with the way many
state supreme courts in the 1950s and 60s quickly adopted Berman v. Parker – the 1954 case where the Supreme Court first
ruled that almost anything can qualify as a public use -as a model for their state constitutional
jurisprudence. It is a further sign that the onetime consensus in favor of an
ultrabroad interpretation of public use has broken down.
JB: Your book concludes that the post-Kelo
legislative reforms didn't go far enough. Why do you think that is so? And what
should be done in the future?
Ilya Somin: Forty-five states have enacted eminent domain reform laws in
the wake of Kelo – more state
legislation than has ever been adopted in response to any other Supreme Court
decision. There has been major progress in many of these states, such as Arizona, Florida, and Pennsylvania. But a
majority of the new laws only pretend to forbid economic development takings,
while in reality allowing them to continue under other names. Usually, they do
this by banning economic development takings, while simultaneously permitting
“blight” condemnations. And they define blight so broadly that almost any area
Even most of those states that enacted relatively effective
reforms still permit condemnations for private development in areas that are
genuinely blighted, in the lay sense of the term. That, too, is contrary to the
Public Use Clause of the Fifth Amendment, and tends to harm residents of poor and
minority neighborhoods. Urban blight is a genuine problem. But there are far
better solutions for it than the use of eminent domain. We don’t need to
condemn poor neighborhood in order to save them.
Many scholars have proposed limited reforms that would limit
the harm caused by blight and economic development takings without banning them
completely. I think several of these ideas (which I review in Chapter 8), have
merit. But none are likely to be as effective as a categorical ban in
curtailing eminent domain abuse and protecting our constitutional rights.