Dissent in Kelo v. City of New London
545 U.S. 469 (2005) (2005) · Supreme Court of the United States
Kelo v. City of New London broadly interpreted the 'public use' requirement of the Fifth Amendment's Takings Clause, holding that economic development constitutes a valid public use justifying the exercise of eminent domain, even when the property is transferred to private parties. The decision was enormously controversial and prompted legislative reforms in over 40 states to restrict the use of eminent domain for private economic development.
What was the dissent in Kelo v. City of New London?
Justice O'Connor's dissent argued that the majority's decision effectively eliminated any meaningful limit on government takings, as virtually any lawful use of property would generate some incidental public benefit such as taxes and jobs. She warned that the decision would disproportionately harm politically weak communities whose properties would be taken for the benefit of those with more political influence. Justice Thomas wrote a separate dissent arguing for a return to the original public meaning of 'public use,' which he contended required actual use by the public.
Case Overview
Facts
The City of New London, Connecticut, approved a development plan designed to revitalize the economically distressed city. The plan included a waterfront conference hotel, restaurants, shops, residences, a new Coast Guard museum, and research and development office space. To implement the plan, the city authorized its development agent to acquire property by eminent domain. Susette Kelo and several other homeowners refused to sell their well-maintained homes, which were not blighted, and challenged the condemnation.
Majority Holding
The Supreme Court held 5-4 that economic development qualifies as a 'public use' under the Takings Clause. The Court deferred to the city's legislative judgment that the development plan would serve a public purpose by creating jobs, increasing tax revenue, and revitalizing an economically depressed community. The Court emphasized that 'public use' should be interpreted broadly as 'public purpose' and that the judiciary should not second-guess legislative determinations of public need.
Majority Reasoning
Justice Stevens, writing for the majority, traced the Court's precedents interpreting public use broadly, from Berman v. Parker through Hawaii Housing Authority v. Midkiff. The Court rejected a narrow reading of public use that would require actual use by the public, adopting instead the broader public purpose interpretation. Stevens emphasized that the city's comprehensive development plan, rather than a one-to-one transfer to a private party, satisfied the public use requirement. The Court noted that states remained free to impose stricter limitations on eminent domain under their own constitutions. The majority expressed concern that a narrower standard would be unworkable and would improperly involve courts in second-guessing legislative judgments about economic development.
The Dissenting Opinion
Justice O'Connor's dissent argued that the majority's decision effectively eliminated any meaningful limit on government takings, as virtually any lawful use of property would generate some incidental public benefit such as taxes and jobs. She warned that the decision would disproportionately harm politically weak communities whose properties would be taken for the benefit of those with more political influence. Justice Thomas wrote a separate dissent arguing for a return to the original public meaning of 'public use,' which he contended required actual use by the public.
Key Quotes
“Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.”
“The government's pursuit of a public purpose will often benefit individual private parties.”
“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process.”
Impact and Legacy
Kelo provoked an extraordinary public backlash and prompted over 40 states to enact legislation restricting the use of eminent domain for economic development. The case remains the most controversial modern takings decision and has become a symbol in debates about property rights and government power. Ironically, the development project in New London was never completed, and the taken properties sat vacant for years.
Exam Relevance
Kelo is a staple of Property exams in questions on eminent domain, the public use requirement, and regulatory takings. Professors frequently ask students to evaluate the majority's broad public purpose interpretation against the dissents' narrower readings and to discuss the policy implications of allowing economic development as a justification for eminent domain.
Study Tips
- Understand the evolution of 'public use' from literal public access to the broader 'public purpose' standard.
- Compare O'Connor's and Thomas's dissents — they take different approaches to limiting government power.
- Know the post-Kelo legislative reactions as evidence of the case's real-world impact.
- Be prepared to discuss whether the Court's deference to legislative judgment is appropriate in the eminent domain context.
Read the Full Case Analysis
View the complete brief for Kelo v. City of New London including full reasoning, doctrine, and study resources.
More Property Dissents
Pierson v. Post
3 Cai. R. 175 (N.Y. Sup. Ct. 1805) (1805)
Justice Livingston dissented, arguing that the case should have been submitted to a panel of experienced hunters rather than decided by reference to ancient legal authorities. He contended that a rule granting rights to the pursuer with a reasonable prospect of capture would better incentivize the socially useful activity of fox hunting and discourage the kind of unsportsmanlike interception Pierson engaged in.
Penn Central Transportation Co. v. New York City
438 U.S. 104 (1978) (1978)
Justice Rehnquist dissented, joined by Chief Justice Burger and Justice Stevens, arguing that the landmarks law imposed a disproportionate burden on Penn Central by singling out the terminal for special restrictions that benefited the public. Rehnquist contended that the cost of preserving a landmark should be spread across the community through eminent domain and compensation rather than borne by individual property owners. He argued the TDRs were an inadequate substitute for just compensation.
Lucas v. South Carolina Coastal Council
505 U.S. 1003 (1992) (1992)
Justice Blackmun dissented, arguing that the majority created an arbitrary categorical rule based on the degree of value diminution. He contended that the state's interest in protecting the coast from erosion and storm damage was a legitimate exercise of the police power that should be analyzed under the Penn Central framework. Justice Stevens also dissented, criticizing the categorical approach as disconnected from the underlying policy concerns of takings law.
Van Valkenburgh v. Lutz
304 N.Y. 95, 106 N.E.2d 28 (1952) (1952)
The dissent argued that Lutz's 30-plus years of continuous, open, and notorious occupation of the lot — including building structures, cultivating gardens, and using the property as his own — clearly satisfied all the requirements for adverse possession. The dissenters contended that the majority's interpretation was overly technical and that Lutz's statements in the earlier proceeding should not be dispositive when viewed in context.
Nahrstedt v. Lakeside Village Condominium Association
8 Cal.4th 361, 878 P.2d 1275 (1994) (1994)
Justice Arabian dissented, arguing that the majority's rigid test sacrificed individual rights to community conformity. He contended that the restriction should be judged by its reasonableness as applied to the specific facts, and that banning indoor cats that cause no disturbance was unreasonable and an unwarranted intrusion on the owner's use of her property.
Stambovsky v. Ackley
169 A.D.2d 254, 572 N.Y.S.2d 672 (N.Y. App. Div. 1991) (1991)
Justice Smith dissented, arguing that the majority's decision was inconsistent with New York's adherence to caveat emptor and that the buyer had a duty to investigate the property. The dissent contended that the majority was creating a new exception to caveat emptor that would generate uncertainty about what kinds of non-physical conditions sellers must disclose.