A new film about the case Kelo v. City of New London highlights that ruling and its effects on the ongoing efforts of nonprofit groups to push back against government abuse of eminent domain.
Little Pink House dramatizes the book of the same name, which in turn tells the story of Susette Kelo, the named plaintiff in 2005's Kelo case. In 1997, Kelo (Catherine Keener) picked up her life to move to the downtrodden, working class hamlet of New London, Conn. There she bought and refurbished the eponymous little pink house.
Unfortunately for Kelo and her newfound bliss, the city had designs on her neighborhood. As the film dramatizes, the city reached a deal to "redevelop" the neighborhood in order to attract new private industry to the area, namely pharmaceutical mega-giant Pfizer. When Kelo and a number of her neighbors refused the city's offers to buy them out of their homes, their houses and property were forcibly seized using the city's eminent domain power.
This legal maneuver makes for much of the film's courtroom drama. But it was of enormous significance in real life, too, running up against a basic constitutional question of how constrained the government's power to seize private property could be.
Eminent domain gives a city, state, or the federal government the power to take private land for public use—for example, buying up land that would otherwise block a planned highway. In Anglo-American common law, legal restrictions on the exercise of eminent domain stretch back to the Magna Carta. In the United States, the Fifth Amendment stipulates that "private property [shall not] be taken for public use, without just compensation."
It was on one word—"public"—that Kelo turned. Specifically, the question before the courts was whether it was constitutional for a city to take property from one private party (Kelo and her neighbors) and sell it to another (a semi-public corporation run by the city and in turn working with Pfizer) if the taking was done "with the hopes the development will help the city's bad economy?"
"Yes," concluded five of the Supreme Court's nine justices, in a ruling that, as Little Pink House shows, left many reeling. Justice John Paul Stevens wrote that he and his left-leaning colleagues, "decline to second-guess the City's considered judgments about the efficacy of its development plan … [and] the City's determinations as to what lands it needs to acquire in order to effectuate the project."
The majority in Kelo had removed any semblance of a restriction on when governments could and could not exercise eminent domain, according to then-Justice Sandra Day O'Connor. So long as a public purpose could be established, she argued, any seizure of property from regular Americans, like Kelo, could be justified.
"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, 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. The Founders cannot have intended this perverse result," O’Connor wrote.
Since the Supreme Court's decision, Kelo has become a rallying point for proponents of stronger protections for property rights. President George W. Bush responded to the ruling at the federal level by issuing an executive order stipulating that eminent domain was to be restricted to "the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties."
As of 2015, 45 states had enacted laws also meant to limit eminent domain abuse. This was significant in that, "no other Supreme Court decision in all of American history has generated so much state legislation," wrote constitutional scholar Ilya Somin.
Still, while states have reacted against eminent domain abuse, it remains a legal and political issue. The Institute for Justice, the public interest law firm that represented the plaintiffs in Kelo, has filed fourteen cases with the aim of "restor[ing] strict limits for when the government can use eminent domain." Most recently, IJ successfully represented a West Haven, Conn. resident against a city plan to seize his home, tear it down, and build a shopping plaza.
It is in this context that Little Pink House's directors aimed to share Kelo's story. According to filmmaker Courtney Moorehead Balaker, the film is meant to be "the centerpiece of an impact campaign designed to end eminent domain abuse."
"Eminent domain abuse is a fancy term for legalized bullying. It happens when insiders take advantage of outsiders … all the high-minded talk obscures what's really going on—they're forcing people out of their homes. If you own your home and you want to keep living in your home, you should be able to stay in your home," Balaker said.