Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights

Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private “economic development” is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a “public use.” Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.

This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution.

In Kelo, New London, Connecticut condemned 15 residential properties as part of an ill-conceived development plan that eventually failed miserably, such that for many years, the condemned property was used only by feral cats. The condemnations were upheld by a closely divided 4–3 Connecticut Supreme Court ruling, and later by a similarly close 5–4 decision of the U.S. Supreme Court. Kelo exemplified the tendency of private-to-private takings to benefit the politically influential at the expense of the politically weak — while destroying more economic value than they create.

In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I argue that Kelo was wrong from the standpoint of both originalism and a variety of living constitution theories. Justice John Paul Stevens, author of the Court’s majority opinion, later admitted his reasoning was based in significant part on an “embarrassing to acknowledge error” in interpreting precedent (generously citing me as a “scholarly commentator” who “caught this issue shortly after we decided Kelo,” in an article I published in 2007).

Here, I focus not on the decision itself, but on lessons that can be learned from the political and judicial reaction to it in the states. Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history. Some of the new laws were ordinary statutes, and others amendments to the state constitution, often enacted by referendum. Several state supreme courts repudiated Kelo as a guide to the interpretation of their state constitutional public use clauses, holding that economic development takings are unconstitutional.

In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court’s interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.

The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests. But “blight” and “urban renewal” takings had been used to forcibly displace hundreds of thousands of mostly poor and minority people from the 1940s to the 1970s (an awful history covered in Chapter 3 of my book). Most lawyers and academics believed the issue of “public use” had been settled by Berman v. Parker, a terribly reasoned 1954 Supreme Court decision concluding that a public use could be virtually anything the legislature says it is, thereby upholding urban renewal takings that displaced thousands of mostly Black residents of Washington, DC. In the 1960s, James Baldwin famously denounced urban renewal as “Negro removal.”

By 2005, most Americans knew little or nothing of this history. Even fewer were aware that Supreme Court precedent and the law of most states permitted such abusive takings. It took the publicity surrounding Kelo to focus public attention on this dismaying reality. The resulting backlash — combined with forceful dissenting opinions by Justices Sandra Day O’Connor and Clarence Thomas — also helped lead many legal elites to rethink “public use,” breaking the seeming consensus established by Berman. State court decisions rejecting Kelo as a guide to their state constitutions are an example of that trend. In these ways, Kelo demonstrated valuable synergies between litigation and political action that other reform movements can learn from.

Post-Kelo reforms continue to constrain takings. Just last month, the Virginia Supreme Court unanimously held that a law authorizing broadband service providers to install fiber optic cables across railroad property violated the state’s post-Kelo public use constitutional amendment (I had a very small role in the campaign to get it enacted). The court concluded that because the broadband provider “is a private, for-profit broadband service provider . . . [and] not a government entity, public service corporation, or public service company . . . [it] cannot exercise the power of eminent domain for a ‘public use.’”

But for all its successes, the political and judicial reaction against Kelo fell far short of ending the problem of abusive condemnations for transfer to private interests. As described in my book, about half of the new state laws provide little or no meaningful new protection for property owners against private “economic development” takings. They give the appearance of reform, but not the reality. In most cases, this sleight-of-hand was achieved by banning takings for “economic development” while at the same time still allowing condemnation of “blighted” property under a definition of “blight” so broad that virtually any property could be declared blighted and taken for transfer to private interests. I have argued that public ignorance made such maneuvers possible. Voters might have been more aware of eminent domain abuse after Kelo, but data shows the vast majority could not tell the difference between effective reforms and bogus ones. In addition, a few states — most notably New York — failed to enact any reforms at all.

As a result, abusive takings continue in many states, ranging from a condemnation for purposes of building a pipeline that may never get built, to efforts to suppress construction of affordable housing, and even a plan to condemn a church to build pickleball courts. In much of the country, protection for property rights is much stronger than it was before Kelo. But state-by-state protections for constitutional rights are not a fully adequate substitute for systematic enforcement of the federal floor established by the Bill of Rights. Some argue that leaving the issue to state and local governments promotes local diversity. But we can achieve even greater localism and diversity by letting each property owner determine for themselves how their land should be used. Protecting constitutional property rights is the ultimate localism.

Four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. But the Court has so far refused to take a case raising that issue. Earlier this year, the justices chose not to review Bowers v. Oneida County Industrial Development Agency, a case brought by the Institute for Justice, the same public interest group that had represented the property owners in Kelo. I and many other property rights advocates believed Bowers to be an ideal vehicle for this issue. The Court’s rejection was extremely disappointing. Nonetheless, there is hope they will eventually overrule Kelo, and possibly even Berman. 

In the meantime, the state reaction to Kelo exemplifies how states can help protect constitutional rights neglected by federal courts — and also the limits to their ability and willingness to do so.

Ilya Somin is Professor of Law at George Mason University, Simon Chair in Constitutional Studies at the Cato Institute, and author of Free to Move: Foot Voting, Migration and Political Freedom, and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

Suggested Citation: Ilya Somin, Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 23, 2025), https://statecourtreport.org/our-work/analysis-opinion/assessing-state-reaction-supreme-courts-undermining-property-rights.