The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain by Ilya Somin (University of Chicago Press, 2015), 336 pages.
The Supreme Court’s 2005 decision in Kelo v. City of New London has become infamous, singled out by defenders of liberty and property for special opprobrium. The Court’s opinion was a sobering reminder that, as libertarians are wont to point out, our individual rights don’t come from government — that, in fact, they exist in spite of the state rather than because of it.
As Ilya Somin observes in the introduction to his book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, for decades the courts have subjected private-property rights to the whims of “the very government officials that they are supposed to protect us against,” a trend that “was usually tolerated and sometimes actively supported by politicians in both parties and by influential business interests.”
Somin’s comprehensive study of the disastrous and much-criticized opinion is destined to become the definitive treatment of Kelo and the destructive principles it represents. The book deserves a place among the best, most exhaustive treatments of the subject of eminent domain in general, which Somin skillfully removes from the dusty confines of legal and public policy minutiae.
He notes early on that the reaction to the Kelo case united elements across the political spectrum. Populists on the political Left, rightly troubled by Pfizer’s influence on the condemnation process, “believed it was wrong to force out people for the benefit of politically connected business interests.” As defenders of private property and individual rights in principle, libertarians naturally led the fight to stop New London from taking away the property of Susette Kelo and her neighbors.
The Kelo case once again gives the lie to the constantly repeated fallacy that a larger, more powerful government means increased protection for “the little guy” against the treachery and avarice of major corporations. In the real world, more-powerful government means more backroom collusion with special interests, more perquisites to parcel out to the politically connected, and widespread disregard for private property and free-market principles. Somin, a George Mason University law professor, handily combines legal, historical, and political analyses in a thorough argument for an end to extreme judicial deference and the resultant “neglect of property rights.”
Chapter one tells the now-well-known story of New London, Connecticut’s, Fort Trumbull neighborhood, the location of Susette Kelo’s home and the proposed site for a new, ninety-acre Pfizer complex that would feature everything from upscale housing to a five-star hotel and a conference center. The development plan was the cronyist work product of the New London Development Corporation, a nominally private nonprofit entity revived largely “at the behest of Republican Connecticut Governor John Rowland.”
Though Pfizer always claimed that it was not behind the Fort Trumbull condemnations, the company’s agreement to establish its headquarters on the site included $118 million in subsidies from the Connecticut government, and documents have since shown that Pfizer conditioned its move on the condemnations.
After outlining the facts and the litigation that ensued, leading all the way to the Supreme Court, Somin takes us on a historical tour of the legal idea of “public use.” In 1868, the Fourteenth Amendment, perhaps the most famous of the so-called Reconstruction Amendments, rendered the actions of the several state governments (not just the federal government) subject to the Bill of Rights, and therefore to the Fifth Amendment’s limitations on eminent-domain takings. Somin offers an enlightening survey of the legal environment surrounding takings in the nineteenth century both before and after the passage of the Fourteenth Amendment.
He shows that the deferential judicial approach we know today did not fully triumph until the twentieth century, when the courts increasingly refused to enforce “a narrow interpretation of public use.” That interpretation, more closely aligned with classical liberal ideas, was succumbing to the “Progressive critique of judicial protection of property rights and economic liberties,” which saw traditional constitutional protections as obsolete impediments to comprehensive government plans.
Somin describes how Supreme Court precedent during the twentieth century steadily eroded the Fifth Amendment’s Public Use Clause, ostensibly a constraint on government takings of private property. The politics of the Progressive Era and the New Deal had fundamentally reshaped the thinking of public officials and judges, leading the courts to adopt a new position of deference to takings that once would have raised eyebrows, particularly those that potentially implicated a “private purpose.”
As established by Supreme Court precedent, constitutional law has traditionally protected individuals against takings of their property that are “merely intended to benefit a private interest.” Governments are thus forbidden, at least on paper, from simply transferring property from one private party to another without the demonstration of a genuine “public purpose,” defined increasingly broadly in the lead-up to Kelo. Far from constituting a break from previous Supreme Court decisions, Kelo merely offered a particularly high-profile example of the incredibly low bar used by the courts to judge takings through eminent domain.
This more recently developed and far less rigorous standard, which asks only whether a given taking is “rationally related to a conceivable public purpose,” practically eviscerates the Constitution’s protection of private property and legitimates almost any imaginable taking. The Institute for Justice’s Clark Neily correctly calls this kind of rational-basis test “a junk drawer for disfavored constitutional rights,” a way for courts to abdicate their responsibilities and give government bodies a blank check to disregard the rights of individuals.
Somin highlights the Supreme Court’s opinion in the 1954 case of Berman v. Parker as touching off this period of unhealthy judicial deference to legislative determinations of public purpose, establishing a precedent that treats a legislature’s position on the constitutionality of its own acts as “well-nigh conclusive.” The Court in Kelo re-affirmed that attitude and stressed that the courts should resist the urge to “second-guess the wisdom” of plans to use the eminent domain power in the promotion of economic development.
Somin and other libertarian lawyers, both in public-interest practice and the academy, have long argued that the excessively deferential posture of the courts amounts to a failure to fulfill the obligations of genuine judicial review. Those legal scholars champion judicial engagement, encouraging judges to more actively enforce the Constitution’s limits on government power, to insist that the government demonstrate the necessity of actions that infringe individual rights.
Too often, courts have accepted any and all reasons that governments have offered, even those that are clearly pretextual, conjured up after the fact in order to justify a heavy-handed law. Notwithstanding conservative disquiet about judicial activism, what we witness far more often in the courts is judicial passivism, judges acquiescing in all sorts of overbearing government overreach. Libertarian legal scholars such as Somin maintain that several originalist interpretations of “public use” — even dating from the Fourteenth Amendment rather than the ratification of the Constitution — support more-active judicial protection of private property rights and thus much less deference to governments.
The fifth and sixth chapters of the book, which provide an account of the often disappointing political backlash that followed Kelo, are especially interesting, beginning with the observation that the decision in the case gave rise to “more new state legislation than … any other Supreme Court decision in history.” Somin notes that the reaction to Kelo has “yielded far less effective reform than many expected,” with no shortage of empty rhetoric and stalled legislative efforts at more robust and meaningful reform.
George W. Bush, for example, marked the one-year anniversary of the decision by issuing an executive order — carefully worded so as to be practically toothless — that paid lip service to “the rights of Americans to their private property,” yet could not have a real impact on “virtually any economic development condemnation that the federal government might want to pursue.” Perhaps the most promising effort at federal-level reform, the Private Property Rights Protection Act, passed the House of Representatives three times between 2005 and 2014, only to stall and fail in the Senate.
Continuing in the development and application of the thesis presented in his previous book, Democracy and Political Ignorance, Somin suggests that his “political ignorance hypothesis” can help explain the apparent disconnect between the widespread outrage that followed Kelo and the largely impotent legislative “reforms” that followed. Somin explains that, despite their expressions of anger at the Supreme Court’s decision, few citizens actually knew about the proposed eminent-domain reforms or their substantive terms.
Further, popular indignation after Kelo seems itself to demonstrate the political-ignorance hypothesis insofar as the decision “made little change in existing Supreme Court takings doctrine.” Legislatures were thus able to pass weak or completely meaningless reform measures for show, ensuring no real disruption of the status quo.
Somin considers the power of special interests as another possible explanation of the lack of effective reform laws. Rather than completely discounting this explanation or treating these accounts as mutually exclusive, Somin sees the powerful lobbies that favor broad eminent-domain powers as exploiting the extensive public ignorance at play post-Kelo. After all, legislators would be unlikely to risk upsetting such large majorities unless they were sufficiently convinced that voters lacked awareness of the public-policy situation. “Political ignorance,” Somin writes, “is the handmaiden of interest group power in the political process.”
The arbitrary power of eminent domain reminds us that the state possesses nothing that it has not stolen; its history is a predatory one of theft, plunder, and economic subjugation, the great lords of yore being no more than descendants of the most successful killers and brigands. As Thomas Paine famously wrote in Common Sense, the first king must have been “nothing better than the principal ruffian of some restless gang, whose savage manners or pre-eminence in subtilty obtained him the title of chief among plunderers.”
The state is the great enemy of people such as Susette Kelo and her neighbors, the protector of privilege for an elite group of courtiers. Ilya Somin’s Grasping Hand is an absorbing study not only of the Kelo case, but of the legal and historical context in which it arose; it reveals the fragility of our individual rights against the seemingly boundless power of the modern state and reminds us that we must continue to challenge this kind of arbitrary power in the courts and in the political forum.
This article was originally published in the January 2016 edition of Future of Freedom.