From Direct "Public Use" to Indirect "Public Benefit": Kelo v. New London's Bridge from Rational Basis to Heightened Scrutiny for Eminent Domain Takings

I. INTRODUCTION

The Fifth Amendment to the Constitution, made applicable to the states by the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation."1 Implied in these words is the sovereign's eminent domain power: the federal, state,

or local government's power to take private property for public use. Since the Supreme Court's decision extending the scope of the federal and state governments' eminent domain power in Kelo v. City of New London? the most commonly-asked question has been, "So, could Wal-Mart really take my house now?"3

Such concern might be justifiable. Within hours of the Court's decision in Kelo, the city of Freeport, Texas moved to seize several "waterfront properties from shrimp processing companies to build a marina development."4 Two days after the decision, city officials in Boston began like proceedings to seize similar waterfront properties.5

Nationwide reaction to stem the public outcry since the Court's landmark decision has been quick and decisive. During the time between the Court's decision on June 23, 2005, and publication of this Note, at least twenty-five state legislatures have introduced, or pledged to introduce, legislation to clarify and/or restrict the power of eminent domain.6 Contending that the "Supreme Court has undermined a pillar of American society-the sanctity of the home," the United States House of Representatives overwhelmingly approved a bill to block future seizures of private property for use by developers.7 The 5-4 decision in Kelo was so contentious that the CEO of Freestar Media, LLC faxed an apparently serious request to the town of Weare, Connecticut to begin the application process to condemn the land and build a hotel on the present location of Justice David Souter's home, reasoning that the hotel would obviously create a substantially larger tax base for the community.8 Others targeted Justice Breyer's vacation home in Connecticut for condemnation and use as a state park.9 Both justices voted with the Kelo majority.10