Twenty years ago, today the Supreme Court decided on a controversial case Kero vs. New Londondetermined that private “economic development” was sufficient to meet the fifth amendment requirement that the government could denounce property for “public use.” Seller It generated massive political and judicial backlash, with 45 states enacting prominent domain reform laws accordingly, and several state Supreme Courts rejected Seller As a guide to interpreting their national constitution.
This response highlights the potential synergy between litigation and political action, and the valuable role of the national constitution in protecting important individual rights in the event of federal court failure. But it also shows that state protection of a nation is not a completely appropriate alternative to the strict national enforcement of the federal constitution.
in SellerNew London, Connecticut denounced 15 residential properties as part of an inappropriate development plan that ultimately failed miserably, so the long-standingly accused property was used only by feral cats. The accusation was closely divided into the Connecticut Supreme Court decisions and was later upheld by the US Supreme Court’s equally close 5-4 decision. Seller It exemplified the trend of obtaining independence from the private sector to benefit politically influential people at the expense of politically vulnerable people.
In my book Grab your hand: Kero vs. New London Limitations of prominent domains, I’ll insist that Seller It was wrong in terms of both originality and various living constitutional theories. Judge John Paul Stevens, author of the court’s majority opinion, admitted that his reasoning was based on “embarrassing to admit error” when interpreting precedents (genetically cited me as the “scholar commentator” who caught the issue shortly after our decision. Seller” (in an article published in 2007).
Here, I focus on lessons that can be learned from the state’s political and judicial responses, not the decision itself. Seller It caused a wider resentment than other modern Supreme Court decisions in fact. Citizens were overwhelmingly sympathized with the city government or private organisations that took over the land, but the property owners who took their homes to suspicious projects. Opinion polls showed that over 80% of the public disapproved of the ruling. It was widely criticized both on the right and on the left by changing numbers like it was back then. Bernie Sanders (D-VT) on the far left and the radio talk show host Rush Limbaugh are on the far right. Over the next few years, 45 states have enacted prominent domain reform laws in response to decisions. This is the broadest state legislative response to the Supreme Court’s decision in American history. Some of the new laws are regular laws, while others are amendments to the national constitution, often enacted by referendums. Some state Supreme Courts refused Seller As a guide to the interpretation of state constitutional public use clauses, we consider the acquisition of economic development unconstitutional.
In a well-known 1977 article, Supreme Court Judge William Brennan emphasized that state constitutions often provide stronger protection for individual rights than they are under the Supreme Court’s interpretation of the federal constitution. Repulsion Seller In many respects it is a proof of his paper.
National response Seller It is also a dramatic example of how litigation and political action can be mutually reinforced. in front SellerMost Americans had little idea that prominent domain abuse was a serious issue or that it could be used to replace people from their homes to transfer the land to private interests. However, in the 1940s and 1970s, efforts to “deplete” and “city renewal” were used to forcefully replace hundreds of thousands of poor and minority populations (the terrible history featured in chapter 3 of my book). Most lawyers and academics believed that the problem of “public use” had been resolved. Berman vs. Parkera 1954 Supreme Court decision concluded that public use could effectively be what Congress says, thus uphelding the acquisition of a city renewal that drove away thousands of black residents of Washington, D.C. In the 1960s, James Baldwin was famous for denounced city renewal as “black removal.”
By 2005, most Americans knew little or nothing about this history. Even fewer people were aware that Supreme Court precedents and most state laws allowed such abuse. I needed to promote the people around me Seller Focus the public’s attention on this disappointing reality. The resulting repulsion – combined with strong dissent from Justices Sandra Deio Connor and Clarence Stomus, leading many legal elites to reconsider “public use,” Berman. State court decision to reject Seller An example of that trend as a guide to their national constitution. In these ways, Seller It demonstrated a valuable synergistic effect between litigation and political action that other reform movements can learn.
post-Seller Reforms continue to restrict acquisition. Last month, the Virginia Supreme Court unanimously held that a law allowing broadband service providers to install fiber optic cables on rail properties violated state posts.Seller Constitutional reform (I played a very small role in enacting it in the campaign). The court concluded that broadband providers “cannot use the power of prominent domains for “public use” because they are private, for-profit broadband service providers and are not government agencies, public service companies or public service companies.”
But for all its success, political and judicial responses Seller It’s far from ending the issue of abusive accusations of transfers to private interests. As explained in my book, about half of the new state laws provide little or no meaningful new protection to property owners against the acquisition of private “economic development.” They give a figure of reform, but it is not reality. In most cases, this kind of thing was achieved by banning “economic development,” but at the same time, it allows the condemnation of the property of “desolation” under the definition of “desolation”, and virtually all property could be devastated and declared for transfer to private interests. I argued that the ignorance of the nation made such manipulation possible. Voters may have been more aware of the prominent domain abuse Sellerhowever, the data show that the majority were unable to convey the difference between effective and false reforms. Furthermore, some states, especially New York, were unable to enact any reforms.
As a result, many states have continued abusive seizing, with criticisms for the purpose of building pipelines that may not be built, to efforts to curb the construction of affordable housing, and even plans to denounce churches for building pickle ball courts. In most parts of the country, property rights protection is much stronger than before Seller. However, state-by-state protections to constitutional rights are not a completely appropriate alternative to the systematic enforcement of federal floors established by the Bill of Rights. Some argue that leaving this issue to states and local governments promotes local diversity. However, greater localism and diversity can be achieved by having each property owner decide for himself how to use his land. Protecting constitutional property rights is the ultimate localism.
The current four Supreme Court justice shows interest in revisiting or rejecting Seller. However, the courts have so far refused to file a lawsuit bringing the issue. Earlier this year, the judge chose not to review Bowersv. OneidaCounty Industrial Development Agency, The lawsuit filed by the Judicial Institute, the same public interest group that represented the property owner. Seller. Me and many other property advocates believed Bowers To be an ideal tool for this problem. The court’s refusal was very disappointing. Nevertheless, I hope they will eventually overturn it Sellerand perhaps even Berman.
In the meantime, the national response Seller It illustrates how states can help federal courts protect ignored constitutional rights, as well as limits to their ability and willingness to do so.
Ilya Somin is a professor of law at George Mason University, Simon, chairman of constitutional research at the Kato Institute, and author of Move freely: Football, migration, political freedomand Grab your hand: Kero vs. New London Limitations of prominent domains.
Suggested Quote: Ilya Somin, Evaluation of state responses to the weakening of Supreme Court property rightssᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (June 23, 2025), https://statecourtreport.org/our-work/analysis-opinion/assessing-state-rection-supreme-cursterming-porty-rights.
