The last clause of the Fifth Amendment to the United States Constitution, known as the Takings Clause, states “nor shall private property be taken for public use, without just compensation.” On June 23, 2005, the United States Supreme Court held that the New London Development Corporation (NLDC) through the City of New London could acquire private property within a redevelopment area by eminent domain for economic development without violating the public use requirement of the Takings Clause of the Fifth Amendment to the United States Constitution. Kelo v. New London., 545 U.S. ___ (2005). In so ruling, the Supreme Court affirmed the holdings of prior case decisions, such as Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which interpreted the term “public use” to mean any legitimate public purpose and surrendered the responsibility for making this determination to State legislatures. According to the Kelo Court, lead by Justice Stevens who wrote the opinion, “our cases have defined [the public use] concept broadly, reflecting our longstanding policy of deference to legislative judgments in the field[,]” affording them “broad latitude in determining what public needs justify the use of the takings power.” As such, the NLDC’s conclusion that a 90-acre redevelopment area “was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference[,]” and categorically rejected the notion that “economic development does not qualify as a public use.” The Kelo Court’s broad grant of condemnation authority was buttressed by the particular facts and circumstances surrounding the redevelopment plan approved by the City of New London. Apparently, the Kelo Court was taken by the careful formulation of “an economic development plan that [the City] believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue.” The Court went on to say the following:

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenge here satisfies the public use requirement of the Fifth Amendment.

Had the foregoing facts and circumstances not been present the outcome of Kelo v. New London might have been different. Indeed, although the Kelo decision does not provide a great deal of guidance to municipalities and other condemning authorities seeking to take property for the pursuit of economic development, the Court made clear that “one-to-one transfer[s] of property, executed outside the confines of an integrated development plan . . . would certainly raise a suspicion that a private purpose was afoot.” However, this admonition to government agencies is tepid, at best, and provides little solace or security to landowners who, as a result of the Kelo decision, may now lawfully have their property taken upon a showing by the condemning authority that its plan for such lands is proposed to engender some secondary benefit to the community. Since “[n]early any lawful use of real private property can be said to generate some incidental benefit to the public[,]” as Justice O’Connor postulates in her dissenting opinion, “[t]he specter of condemnation hangs over all property.” “Any property may now be taken for the benefit of another private party,” according to Justice O’Connor, “but the fallout from this decision will not be random.” Indeed, “[t]he beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.” Justice Thomas, in a separate dissent, echoed Justice O’Connor’s concerns respecting the disproportionate impact that economic development takings may have upon the populace.

Allowing the government to take property solely for public purposes [as opposed to actual public uses] is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect ‘discrete and insular minorities,’ surely that principle would apply with great force to the powerless groups and individuals the Public Use [requirement of the Takings] Clause protects. (internal citation omitted)