A forthcoming film about Kelo v. City of New London

June 23

Today is the ninth anniversary of Kelo v. City of New London, the controversial Supreme Court decision in which the Court ruled that it was permissible for the government to take private property and give to another private owner in order to promote “economic development” because the hope of increased development is enough to meet Fifth Amendment’s requirement that all takings be for a “public use.” Kelo generated a broader political backlash than virtually any other modern Supreme Court ruling, with some 80% of the public opposing the decision, and a record 45 states passing eminent domain reform laws in response.

Filmmakers Ted and Courtney Balaker are producing a movie about the case, which they describe in this USA Today op ed:

The Constitution once limited how governments could use eminent domain, but post-Kelo, that’s no longer the case. Officials routinely lock arms with corporations or billionaires to forcibly transfer property from one private owner to another, not for public use, but for private gain….

How to tame the ugly spirit of eminent domain abuse and cronyism? We suggest turning to a force mightier than politics: culture. We are producing a feature film based on Kelo’s historic saga, and we hope to achieve some of the impact garnered by Erin Brockovich, another underdog film about a real-life working-class woman.

Erin Brockovich showed how culture can elevate otherwise obscure issues to drive reform. Cultural depictions played an important role in the recent shift in public support for same-sex marriage and marijuana legalization, and Kelo’s courageous struggle could likewise help viewers understand the human cost of eminent domain abuse.

After all, her story already reads like a feature film. The recently divorced nurse was on her own for the first time in her life and fell in love with a rundown little house overlooking a river in New London, Conn., She fixed it up with her own hands and painted it pink. Little did she know that power brokers from city hall to the governor’s mansion were bent on seizing her little pink house and the homes of her neighbors so that Pfizer, a pharmaceutical company, could enhance its corporate facilities. City officials promised more tax revenue and Pfizer executives looked forward to high-end housing and other perks….

Nine years after being taken from her, the land where Kelo and her neighbors once lived remains a barren lot, home to migratory birds and feral cats…..

We hope our film, Little Pink House, will help raise awareness of eminent domain abuse to the point where we could be done with this odious strain of cronyism once and for all.

I am not quite as optimistic about the impact of cultural change as the Balakers. After all, the Kelo case has already generated enormous nationwide outrage and numerous legislative reforms. Yet many of the new laws are likely to be ineffective, in part because of political ignorance that makes it difficult for voters to tell the difference between genuine constraints on eminent domain abuse and merely cosmetic ones. I also believe that Kelo was more consistent with preexisting (albeit, badly flawed) precedent than the Balakers suggest. But there is no doubt that any effective movement to strengthen protection for constitutional rights requires a combination of legal and political action, and increased public awareness. The civil rights movement, the feminist movement, the gay rights movement, and the gun rights movement are all examples of this dynamic. The property right movement, which got a major boost from the Kelo case and the reaction it generated, may turn out to be another.

The Balakers’ film is based on Jeff Benedict’s excellent journalistic account of the Kelo case, Little Pink House, which I reviewed here. I am currently finishing my own book about the case and its aftermath: The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, which will be the first book about the case by a legal scholar (to be published by the University of Chicago Press next year). While Benedict’s book focused on the events in New London which led to the condemnation of Susette Kelo’s home and fourteen other residential properties, mine addresses the broader legal and policy issues raised by the decision. I argue that Kelo was wrong from the standpoint of both originalist and most “living constitution” theories of judicial review, and that economic development and blight condemnations cause far more harm than good, and should be abolished. I also interviewed participants on both sides of the case, and got some interesting insights on their opposing legal strategies.

While there has been important progress since in curbing eminent domain abuse since Kelo, much remains to be done. In some states, the situation is actually getting worse. Hopefully, the Balaker film will help refocus public attention on this issue.

NOTE: The Balaker film is being produced in cooperation with the Institute for Justice, the libertarian public interest law firm that represented the property owners in Kelo, for which I have written a number of pro bono amicus briefs. I have not had any involvement in the film, however.

UPDATE: The post originally referred to the movie as a “documentary.” But it willactually be a feature film based on real events; I have therefore changed the post to just refer to it as a “film.” I apologize for the mistake. I have also corrected a couple minor stylistic problems in the original post.

Ilya Somin is Professor of Law at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is the author of Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2013), and coauthor of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, 2013). Somin has been a visiting professor at the University of Pennsylvania Law School, the University of Hamburg, Germany, and the University of Torcuato Di Tella in Buenos Aires, Argentina. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his B.A., Summa Cum Laude, at Amherst College, M.A. in Political Science from Harvard University, and J.D. from Yale Law School.
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Eugene Volokh | June 23