Kelo v. New London: Progressives vs. Private Property

Your home is your castle, right?  You get to keep the fruits of your labors, right?  That's what government of, by, and for the people means, right?  Not according to the far-lefties who call themselves progressives.  They say that property rights should be "socially beneficial."

In the winter of 1998, pharmaceutical giant Pfizer Inc. announced plans for a global research facility in New London, Connecticut.  Shortly thereafter, the New London government gave approval to the New London Development Corporation (NLDC), a private non-profit, to plan and execute the redevelopment of some 90 acres of the Fort Trumbull neighborhood.  The area to be developed, mostly private property with more than 100 private homes, would be taken by eminent domain.  

The residents were not pleased.

The city planned to take private property from the residents and give it to another private entity, NLDC, in order to, as Justice Sandra Day O’Conner writes in her dissent, "complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city's waterfront, and eventually 'build momentum' for the revitalization of the rest of the city." 

A number of the residents sued, and the suit made it to the Supreme Court where it was known as Kelo v. New London, 545 U.S. 469 (2005).  Suzette Kelo was one of the petitioners whose house was slated for demolition.  She lived in a little pink house on East Street in the Fort Trumbull section of New London. 

The Court split 5-4.  Justices Breyer, Ginsberg, Kennedy, Souter, and Stevens comprised the majority; Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas dissented.  The argument centered on the interpretation of the "Taking Clause" of the Fifth Amendment to the Constitution: "...nor shall private property be taken for public use, without just compensation." and more specifically on the phrase "for public use."  The opinion of the Court was written by Justice John Paul Stevens; the dissenting opinion was written by Justice O’Conner.  Justice Kennedy concurred in the opinion of the Court and wrote a separate concurrence; Justice Thomas concurred in the dissent and wrote a separate dissent. 

Justice Stevens’ opinion can perhaps best be summarized by this quote: “The disposition of this case therefore turns on the question whether the City’s development plan serves a ‘public purpose.’”

Justice O’Conner’s dissenting opinion can perhaps best be summarized by this quote: “This case returns us for the first time in over 20 years to the hard question of when a purportedly ‘public purpose’ taking meets the public use requirement.  It presents an issue of first impression: Are economic development takings constitutional?  I would hold that they are not.”

Justice Thomas, in his dissent, states that the concurrence is based on a “deferential shift in phraseology” and goes on to argue that the word purpose is broader than the word use, and had the Founders intended the more elastic word, they would have used it.

Do we have limited or unlimited government?  Are the people in charge or is the government in charge?

Our Constitution, with basis in the Declaration of Independence, defines a democratic republic where the powers of government are limited and explicitly enumerated.  It is a system that respects the rights of the people, both majority rights and minority rights.  It is a system that features an intricate set of checks and balances that encourages, some say forces, in-depth debate on the issues of the day thus tempering the inflamed passions of the mob.  It is a system of checks and balances that inhibits any single person from accumulating tyrannical powers. 

Progressives believe that the rights of society supersede the rights of the individual.  Over the past 100 years, the progressives have implemented bureaucratic regulation of most governmental functions by non-constitutional agencies of experts (i.e., IRS, FBI, NIH, NOAA, NASA, OSHA, EPA, and on and on; there are over 400 such agencies).  This is known as the Administrative State and it is not hampered by the checks and balances of the Constitution. 

Our lazy Congress passes a law defining an agency with an aspirational charter, and then delegates the right to make the explicit rules and regulations to the appropriate cabinet secretary.  Courts are required, by precedence from the Chevron Deference of 1984, to give deference to the agency in their reasonable interpretation of these rules.  Chevron was a triumph for the progressives and, coincidentally, Justice John Paul Stevens wrote the opinion of the Court.

Note that both the Kelo case and the Chevron case were found for the government over the petitioners.  It would seem that on close cases the rule of law, in a limited government, would give deference to the petitioner over the government.  This is an example of the conflict between conservatives and progressives.

Following the Court’s decision, the city lost little time in taking the 90 acres by eminent domain and then completely razing the area.  Suzette Kelo successfully negotiated to have her little pink house dismantled and reconstructed elsewhere in the city.  The NLDC went forward with fundraising, but it did not go well, and then they ran into the Great Recession of 2008.  The project foundered, Pfizer pulled out, and the effort died.  In 2011 Hurricane Irene did considerable damage in and around Fall River.  The city used their empty razed acres to dump the detritus from the storm.  Little has changed since.

In July 2021, the Supreme Court declined to hear the case of Eychaner v. Chicago.  In his dissentJustice Thomas wrote"This petition provides us the opportunity to correct the mistake the Court made in Kelo.  That decision was wrong the day it was decided.  And it remains wrong today."

This is supposedly a six-three conservative Court.  Has a hundred years of progressive propaganda so permeated our national psyche that even the Supreme Court seems affected?

Mike Johnson is a small government conservative, a live-free-or-die resident of NH, and the author of the e-book John Kerry & PCF-44.  E-mail

Image: Pixabay

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