James Pfister: Sandra Day O’Connor, property, and the Kelo case

Former Justice of the Supreme Court Sandra Day O’Connor died last month at age 93. She had served on the court for 25 years. Most long-term followers of the Supreme Court, no doubt, have a favorite O’Connor opinion. Mine is her dissent in Kelo v. City of New London (2005). The Kelo opinion showed her traditional judicial methodology, awareness of the political process, practicality, independence and spunk.

The Kelo case dealt with the governmental power of eminent domain, i.e., the power to take your real estate for a “public use,” like for a road. This “taking” power is governed by the Fifth Amendment of the Constitution, in particular its Taking Clause: “private property (shall not) be taken for public use without just compensation.” This is made applicable to the states and their subdivisions by the Due Process Clause of the 14th Amendment (the incorporation doctrine).

The said Takings Clause has two concepts: public use and just compensation. We are dealing here with public use. Public use will be distinguished from the broader concept of public “purpose.”

In the Kelo case, the City of New London applied eminent domain, or condemnation, to properties in the Fort Trumbull neighborhood. This was not for a road, a public use, but for an economic development involving the Pfizer chemical enterprise, not a public “use” but a public “purpose,” since it was perceived that such an economic development would lead to increased property taxes, increased employment, and general betterment that occurs when a slosh of money is added to an area. But the perceived benefit was never conceived: Pfizer pulled out of the project. After millions spent, New London was left with a large field.

The legal question is whether this was a constitutional taking, being for a public “purpose,” not a public “use” as the text specifies. The majority of the Kelo Court held such public purpose was constitutional under the Fifth Amendment. Justice O’Connor said no, being a violation of the intent of the Founders of the Constitution, contrary to precedent and to the traditional concept of property rights, and fundamentally unfair for the average person losing out to those with more political and financial power. She was joined in her dissent by Chief Justice Rehnquist, and Justices Scalia and Thomas. It was a close 5-4 decision.

In her reasoning, O’Connor went back 200 years to Justice Samuel Chase. Shortly after the Bill of Rights (1791), Chase wrote: “A law that takes property from A and gives it to B … is against all reason and justice …” Calder v. Bull (1798). O’Connor stated that the majority opinion was to “wash out any distinction between private and public use of property – and thereby effectively to delete the words ‘for public use’ from the Takings Clause of the Fifth Amendment.” She quoted Alexander Hamilton speaking before the Constitutional Convention about “the security of Property,” being one of the great purposes of government: to protect property owners “in the political process against the majority will.” She believed that protection was the job of the judiciary. “Were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.” (O’Conner was one of the few justices to have had legislative experience). To rely on state statutory law to protect property, she believed, “is an abdication of our responsibility” as a court.

In her reasoning, O’Connor had to confront two precedents that constituted massive eminent domain: Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984). She viewed these cases as outliers based on necessity: “In both those cases, the extraordinary, pre-condemnation use of the targeted property inflicted affirmative harm on society…”

O’Connor showed an awareness of the political process, whereby the average property owner could be overpowered: “the government now has license (as a result of the majority opinion) to transfer property from those with fewer resources to those with more. The Founders could not have intended this perverse result.” Government should protect, not destroy, property rights. (Citing James Madison).

As a retired real estate attorney and broker/Realtor, I’d like to see the conservatives on the Court, Justices Kavanaugh, Thomas, Alito, Barrett, and Gorsuch, adopt O’Connor’s approach. We cannot rely on statutory protection in the future.

— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Holland Sentinel: James Pfister: Sandra Day O’Connor, property, and the Kelo case