Vol. 26 No. 2 (June 2016) pp. 35-38
THE GRASPING HAND: KELO V. NEW LONDON AND THE LIMITS OF EMINENT DOMAIN by Ilya Somin. Chicago: University of Chicago Press, 2015. 356pp. Hardcover $30.00. ISBN: 978-0226256603.
Reviewed by Logan Strother, Department of Political Science, Syracuse University. Email: firstname.lastname@example.org.
Ilya Somin’s THE GRASPING HAND is both an intensive case-study of one of the most controversial decisions in the Supreme Court’s history, KELO V. NEW LONDON, and an extensive treatment of the historical, legal, and political development of the “Public Use” doctrine. The book is thoroughly researched, and the writing is lively and engaging. THE GRASPING HAND is notable for the richness and variety of data Somin brings to bear on his topic: it features substantial legal research on cases and statutes, of course, but also numerous interviews with homeowners from the Fort Trumbull neighborhood, city officials from New London, and attorneys for both sides in the dispute, as well as extensive polling data on attitudes about the Court’s decision and many reform measures enacted in KELO’S wake.
Somin’s basic argument is that KELO is bad law, and should be overturned. He argues that economic development and “blight” takings – both currently justified under the Court’s “public purpose” doctrine – are unconstitutional under both originalist and living constitutionalist theories of interpretation. He rests his originalist argument primarily on analysis of state supreme court decisions on state constitutional public use clauses in the post-bellum period. He does this because they provide, in his view, the best available window into the meaning of “public use” as understood by jurists who witnessed the passage of the Fourteenth Amendment (there were virtually no federal takings cases in this period). Somin’s discussion of cases is supplemented with a number of other sources, including legislative debates and period legal treatises. All told, he finds that between 1832 and 1877, sixteen states adopted a “narrow” reading of public use, while nine adopted “broad” readings. Extending the analysis to 1905 only strengthens his case, with nine more state supreme courts adopting narrow readings to only two that adopted broad readings (pp. 46-47). His analyses offer a significant rejoinder to the conventional wisdom that “public use” was broadly interpreted in the early Republic and post-bellum periods, though the historical record certainly leaves room for debate.
Further, Somin argues that economic and blight takings are politically undesirable because they disproportionately harm poor and politically vulnerable populations, and tend to benefit powerful business interests and their allies in government. Using the example of KELO he demonstrates that those condemnations “were undertaken in large part as a result of extensive Pfizer lobbying of state and local officials” (p. 16). Because of the political realities of eminent domain, Somin suggests that broad use takings fail under a number of theories of living constitutionalism, including: representation-reinforcement, because they disproportionately harm the politically weak (Ely 1980); common law constitutionalism, because the doctrine is internally contradictory (Strauss 2010); moral constitutionalism, because the outcomes of such takings are far from the ideal of “equal justice under law” (Dworkin 1986); and popular constitutionalism, because of their considerable disfavor among the public (Kramer 2005).
What is truly striking about KELO, however, was not the decision, but its aftermath. The backlash to KELO was unprecedented, with polls consistently finding more than eighty percent of Americans oppose of the Court’s ruling. Moreover, in the decade since KELO was decided, forty-five states and the federal government have passed laws ostensibly limiting the use of eminent domain for economic development (pp. 135-64). Somin codes each of the reform measures passed as either “effective” [*36] or “ineffective” and argues that fewer than half actually place meaningful restrictions on economic development takings. His coding rules are perhaps a little ambiguous: they require identifying “significant” protection, or determining that they forbid such takings in “some substantial range of cases” (p. 141). Still, a close reading of the analyses suggests that the determinations he reached are reasonable, and they track closely with similar coding of those laws by other scholars and interest groups.
One important lesson Somin draws from the study of KELO’S impact is that “for constitutional reform movements, legal action and political action are not mutually exclusive categories, but rather mutually reinforcing” (p. 241). That is, after property rights advocates failed at the Supreme Court, they turned to legislatures seeking the same protections the Court declined to provide – and the massive public reaction to KELO created a fortuitous legislative environment that allowed advocates to successfully press their claims in statehouses around the country. This story strongly resonates with a growing body of scholarship that explores the ways interest groups venue shop to achieve their policy goals. Tom Keck (2014), for example, argues that interest groups routinely use both litigation and lobbying to advance their respective visions of constitutional rights, and do so because both strategies can be effective. Work in this vein emphasizes the interactive and iterative nature of constitutional development (Pickerill 2004; Whittington 2005; Silverstein 2009). The fact that so much of the political reaction played out (and is still playing out) in state legislatures illustrates that rights advocates are both flexible and strategic in choosing the venues for their contests (Keck 2014; Beienburg 2014; Bennett 2014).
Yet Somin’s conclusion is perhaps more somber than many other works in this growing literature. After surveying the many legislative reforms enacted after KELO and their limited reach, Somin concludes that many of those measures were reforms in name only, having been captured by pro-development interest groups. These analyses lead him to argue that true reform –which would bring the use of eminent domain into closer accord with both the Constitution and the popular will – will almost certainly require action by the Supreme Court. This view stands in contrast to the rather more optimistic views of many scholars who tend to view legislative responses to the Court’s constitutional holdings as something of a “democratic fix” for the Court’s errors (e.g. Posner 2008).
Somin tells a clear interest group centric cause lawyering story with respect to the litigation of KELO. He notes that the Institute for Justice (“IJ”) had long been searching for test cases that might challenge the Court’s broad reading of the Public Use clause (see generally Hatcher 2005). Scott Bullock, one of the IJ attorneys who represented Kelo and her neighbors, would later describe KELO as an “ideal public interest case” because of its compelling clients, simple factual history, and the aggressive tactics used by the city (p. 25). Somin’s discussion of the case – including his interviews with many of the plaintiffs – clearly indicates that the lawsuit would not have been possible without IJ.
Yet in his discussion of the legislative responses to KELO, Somin does not discuss in-depth the process of reform beyond whether a particular measure was enacted by a legislature or a citizens’ initiative. That is, his discussion of the legislative and popular reform measures after KELO often seems to suggest that they sprang up organically. This may well have been the case, but we are unable to judge from the evidence provided here. It seems likely that the same interest groups who foster litigation against abuses of the eminent domain power would also be leading the charge in statehouses around the country (see den Dulk and Pickerill 2003; Keck 2014). Somin notes that “IJ helped generate extensive sympathetic media attention for the case,” but goes no further in drawing out their hand in the wave of reforms in the following decade – or the hands of other groups that opposed the reforms (p. 26). This is particularly surprising given his emphasis on the many incentives organized interests have to seek private benefits from the usage of the eminent domain power (chapter 2). He emphasizes, for example, that “the desire to transfer land to [*37] politically influential interest groups is often a key factor in incentivizing governments to engage in condemnation in the first place” (p. 230). Thus, it seems likely that there is an important interest group story to be told with respect to variation observed in the efficacy of reforms after KELO.
Somin’s explanation for the relative weakness of much of the post-KELO legislation is public ignorance. He demonstrates with polling data that about 80% of people could not even say whether their state had enacted any reform. While this story is plausible – and indeed likely does explain some of the observed outcomes – it tells only part of the story. California provides an illustrative example. The California League of Cities (“CLC”), an interest group composed of local governments who sought to preserve their eminent domain authority, placed a meaningless “reform” measure on the ballot in order to preempt more significant reforms. Somin argues that the ineffectiveness of California’s eminent domain reform is attributable to the public’s ignorance – voters failed to discern the limited reach of the measure they voted for. Yet attributing the success of this move to public ignorance elides the affirmative role of the CLC in strategically pushing for an empty reform. He softens his claims a bit towards the end of chapter 6, noting that “Political ignorance is the handmaiden of interest group power in the political process” (p. 177). He goes on to acknowledge that interest groups played a role in the post-KELO reforms, but maintains that political ignorance is the key explanatory variable. In my view, greater attention to the role of organized interests on both sides of the battles for legislative reforms would provide needed insights into the supply side of the equation on these reforms, and would also likely help account for things that public ignorance cannot, such as the fact that some state legislatures enacted strong reforms despite the ignorance of voters. In fairness, of course, it must be noted that Somin’s stated purpose here was to analyze KELO and its impact, not the role of the Institute for Justice or other interest groups in the development of property rights protections since 2005. Still, this seems an important part of the story that is not told, or at least, is significantly undersold, in this account.
With these criticisms in mind, this book is still a must read for anyone interested in the politics and history of property rights and property law in the United States. Its appeal is even broader though, and would be fruitfully read by anyone with an interest in constitutional theory, judicial impact, or cause lawyering. The book is accessible enough to be read by undergraduate students, and would be an excellent choice for an upper-level course on property law or the Supreme Court in American politics.
Beienburg, Sean. 2014. “Contesting the U.S. Constitution through State Amendments: The 2011 and 2012 Elections.” POLITICAL SCIENCE QUARTERLY 129(1): 55-85.
Bennett, Daniel. 2014. “Serving God by Shaping Law: Religious Legal Advocacy in the United States.” In MEDIATING RELIGION AND GOVERNMENT: POLITICAL INSTITUTIONS AND THE POLICY PROCESS (Elizabeth Oldmixon and Kevin den Dulk, eds.). New York: Palgrave Macmillan.
den Dulk, Kevin R., and J. Mitchell Pickerill. 2003. “Bridging the Lawmaking Process: Organized Interests, Court-Congress Interaction, and Church-State Relations.” POLITY 35(3): 419-440.
Dworkin, Ronald. 1986. Law’s Empire. Belknap Press of Harvard University Press.
Ely, James Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.
Hatcher, Laura. 2005. “Economic Libertarians, Property, and Institutions: Linking Activism, Ideas, and Identities among Property Rights Advocates.” In THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE (Austin Sarat and Stuart A. Scheingold, eds). Stanford: Stanford University Press. [*38]
Keck, Thomas M. 2014. JUDICIAL POLITICS IN POLARIZED TIMES. Chicago: University of Chicago Press.
Kramer, Larry D. 2005. THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. New York: Oxford University Press.
Pickerill, J. Mitchell. 2004. CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM. Durham: Duke University Press.
Posner, Richard A. 2008. HOW JUDGES THINK. Cambridge: Harvard University Press.
Silverstein, Gordon. 2009. LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVES, AND KILLS POLITICS. New York: Cambridge University Press.
Strauss, David A. 2010. THE LIVING CONSTITUTION. New York: Oxford University Press.
Whittington, Keith E. 2005. “James Madison Has Left the Building.” THE UNIVERSITY OF CHICAGO LAW REVIEW 72(2): 1137-1158.
KELO V. CITY OF NEW LONDON, 545 U.S. 469 (2005).
© Copyright 2016 by author, Logan Strother