At the Library of Law and Liberty blog, Mark Pulliam has posted a review of George Mason University law school professor Ilya Somin’s book The Grasping Hand (2015), which is an exploration of Kelo v. City of New London (2005) and the power of eminent domain generally.
An excerpt from the review:
In Kelo, following earlier decisions in Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), the U.S. Supreme Court held by a 5-4 vote that the words “public use” in the Takings Clause of the Fifth Amendment does not restrict the taking of private property to government use; it is sufficient that the condemnation have a “public purpose,” a loose concept that encompasses virtually any use deemed to have a potential public benefit. Thus, state and local governments can—and do—wield the awesome power of eminent domain to compel the transfer of property from one private owner to another, in the name of “urban renewal,” “redevelopment,” and similar euphemisms for rent-seeking by powerful special interest groups. The current conception of “public use” would, proponents concede, permit the condemnation of a Motel 6 owned by A so the property could be used by B to build a Ritz-Carlton that generated more tax revenue.
A growing consensus has developed that Kelo was wrongly decided. Indeed, the Kelo decision has come to be regarded as an archetypal example of bad law. Somin analyzes Kelo from many different perspectives—historical, economic, philosophical, and political—but the most valuable aspect of The Grasping Hand is his inquiry into the original meaning of the term “public use.” He persuasively argues that the U.S. Supreme Court flat-out misconstrued one of the most important provisions of the Constitution, leaving property owners at the mercy of state and local governments. In the process, the Court produced one of the most controversial decisions in modern times.
Although Kelo was politically unpopular—even reviled—Somin notes that “a substantial majority of constitutional law scholars continue to believe that Kelo was rightly decided.” In The Grasping Hand, Somin aims to prove them wrong.