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Urban Geography
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Legal GeographiesKelo, Contradiction,

and Capitalism
a
Nicholas Blomley
a
Simon Fraser University
Published online: 16 May 2013.

To cite this article: Nicholas Blomley (2007) Legal GeographiesKelo, Contradiction, and
Capitalism, Urban Geography, 28:2, 198-205, DOI: 10.2747/0272-3638.28.2.198

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 LEGAL GEOGRAPHIESKELO, CONTRADICTION, AND CAPITALISM1

Nicholas Blomley2
Department of Geography
Simon Fraser University

Abstract: In the Susette Kelo et al. v. City of New London, Connecticut, et al. decision of
2005, a majority of the U.S. Supreme Court held that the use of eminent domain by the New
London Development Corporation, a nonprofit organization charged with redeveloping a
depressed site in New London, Connecticut, was not a violation of the Fifth Amendment, which
prevents the taking of private property for public use without just compensation. Unlike prior
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eminent domain decisions, the immediate beneficiaries in Kelo were private interests: the public
benefit was simply the localized trickle-down effects of economic redevelopment. This short
commentary argues that Kelo offers an instructive window into the contradictory geographies of
property under urban neoliberalism. While neoliberal redevelopment frequently invokes and
mobilizes private property, it may also dispossess owners and rework entitlements in the name
of highest and best use, as in New London. The social geographies of dispossession, however,
are not equitable: smaller and otherwise marginalized interests may suffer disproportionately,
despite ideological assurances to the contrary. [Key words: eminent domain, property, neo-
liberalism.]

KELO, CONTRADICTION, AND CAPITALISM

This battle against eminent domain abuse may have started as a way for me
to save my little pink cottage, but it has rightfully grown into something
much largerthe fight to restore the American Dream and the sacredness
and security of each one of our homes.
Testimony of Susette Kelo (2005)

In 1996, the federal government closed the Naval Undersea Warfare Center in the Fort
Trumbull area of the city of New London, Connecticut, laying off over 1,500 people. In
1998, New Londons unemployment rate was nearly double that of the state, and its
population of 24,000 was at its lowest level since 1920. Civic and state officials targeted
New Londonin particular, the Fort Trumbull areafor economic revitalization. A non-
profit organization, the New London Development Corporation, was formed, and
charged with planning the site. The State authorized a $5.35 million bond to support the
NDLC, and a $10 million bond was issued to help create a Fort Trumbull State Park in
1998. A month later, Pfizer Inc. announced plans to build a $300 million research facility

1
This piece was originally intended to be a joint collaboration between Don Mitchell and myself. Sadly, Don
had to drop out. Thanks to him for the initial suggestion, and to him, Jamie Peck, and Steve Herbert for their
comments and thoughts.
2
Correspondence concerning this article should be addressed to Nicholas Blomley, Department of Geography,
Simon Fraser University, Burnaby, BC V5A 1S6, Canada; telephone: 604-291-3713; e-mail: blomley@sfu.ca

198
Urban Geography, 2007, 28, 2, pp. 198205.
Copyright 2007 by V. H. Winston & Son, Inc. All rights reserved.
 KELO, CONTRADICTION, AND CAPITALISM 199

on an adjacent site. Following a planning process, the NDLC finalized a development

plan for 90 acres of the Fort Trumbull area. Seven parcels were identified for various new
developments, including a waterfront conference hotel at the center of a small urban
village to include: restaurants, shopping, and marinas; 80 new residences; a U.S. Coast
Guard Museum; 90,000 square feet of R&D office space; and a pedestrian riverwalk.
The NDLC intended the Fort Trumbull development to benefit from the Pfizer facility,
and associated positive externalities. By 2004, it trumpeted its role in creating hope and
confidence that has transformed New Londons investment climate. Today, new London
is the place to be (New London Development Corporation, 2004, p. 4). City council
approved the plan in January 2000, authorizing NDLC to purchase or acquire property
through the exercise of eminent domain.
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The development site comprised 115 privately owned properties, as well as the 32
acres formerly occupied by the Navy. The NDLC successfully negotiated the purchase of
most of the properties, but nine property owners, who collectively owned 15 parcels in
Fort Trumbull, declined to sell. Susette Kelo had lived in Fort Trumbull since 1997, mak-
ing extensive improvements to her heritage house (which she described as her little pink
cottage) that she reportedly valued for its water view. Another petitioner, Wilhelmina
Dery, was born in her Fort Trumbull house in 1918 and had lived there ever since. Their
son, who joined in the suit, lived next door with his family in a house he was given as a
wedding present. Their properties were to be demolished, and used for office space or
parking lots.
Condemnation proceedings were initiated: the nine owners petitioned the New London
Superior Court to invalidate these proceedings, arguing that the taking of the properties
would violate the Fifth Amendment (of which more below). Partial success at this level
lead to an appeal to the Supreme Court of Connecticut, which held, over a dissent, that all
the Citys takings were valid. The U.S. Supreme Court granted certiorari to determine
whether a citys decision to take property for the purpose of economic development fell
within the bounds of the Fifth Amendment. A majority of the court ruled that it did.3
The so-called Takings Clause of the Fifth Amendment provides that private property
[shall not] be taken for public use, without just compensation. This, of course, has
proved something of a lightning rod in a number of high profile U.S. cases (notably Lucas
v. South Carolina Coastal Council, 1992). What then is a public use? The U.S.
Supreme Court has previously identified three existing categories of takings that conform
to public use. The state may transfer private property to public ownership (e.g., for the
building of a road). The state may also transfer private property to private parties when
they make the property available for the publics use, such as with a railroad. However,
in the present case, the City was not planning to open the condemned land to public use,
nor was it requiring the new owners to operate like common carriers. In certain circum-
stances, however, the Court has allowed takings even when a property has been subse-
quently designated for private use. However, in these cases, the Court identified some
clear public good that was served. In Berman v. Parker (1954), the Court upheld the

3
Stevens delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer joined. Kennedy
filed a concurring opinion. OConnor filed a dissenting opinion, in which Rehnquist, Scalia, and Thomas
joined. Thomas filed a dissenting opinion.
 200 NICHOLAS BLOMLEY

taking of Mr. Bermans department store in a poor neighborhood in Washington, DC,

justifying it as part of a wholesale urban renewal project. In Hawaii Housing Authority v.
Midkiff (1984), the Court upheld the transfer of title from lessors to lessees, deferring to
the judgment of the Hawaii Legislature that the prevailing oligopoly in land ownership
had skewed the land market and inflated prices.
In Kelo, however, the public use seemed unclear, given that the obvious beneficia-
ries were private interests. Nevertheless, the Citys plan, the majority confidently found,
unquestionably serve[d] a public purpose and satisfied the public use requirement of
the Fifth Amendment (Kelo, p. 13). The majority wished to continue its tradition of
deference to legislatures: promoting economic development, it noted, is a traditional and
long accepted function of government. Though it did not dwell on this, it also was
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comfortable with the notion that economic rejuvenation (Kelo, p. 13) constituted a
valid public use, in that it brings appreciable benefits to a community, including new jobs
and increased tax revenue. Justice Anthony Kennedy, in concurrence, characterized the
taking as part of a comprehensive development plan meant to address a serious city-
wide depression. [T]he projected economic benefits of the project cannot be character-
ized as de minimus (Kelo, p. 4). Economic development, the majority argued, cannot be
distinguished from other public purposes that the Court has upheld. Granted, the taking
will benefit private parties. However, this is often the case when the state pursues the
public purpose. Clearly, close scrutiny is needed. However, noted Kennedy, this is not
required simply because the purpose of the taking is economic development.
Justices Clarence Thomas and Sandra Day OConnor, however, provided stinging dis-
sents. For Thomas, a devout originalist, the court had departed radically from the original
intent of the Fifth Amendment. Public use, he argued, requires the actual public use of a
property. For OConnor, economic development constitutes an unconstitutional taking:
the effect of the majority decision is to wash out any distinction between private and
public use of property (Kelo, p. 2). As a result, all private property is now vulnerable to
being taken and transferred to another private owners, so long as it might be upgraded
(Kelo, p. 1). The specter of condemnation (Kelo, p. 10) now stalks the land, she feared.
Subsequent observers have concurred. For Pitney (2006), Kelo has rendered the protec-
tions of the Fifth Amendment virtually meaningless (p. 324). In testimony to the Senate
Judiciary Committee on Kelo, law professor Steven Eagle describes the majority decision
as an affront to an American heritage of private property and liberty in which feudal
traditions of tenure were rejected by early settlers, drawn by the lure of fee simple title.
Under Kelo, however, Americans who assumed that their homes and shops were
indeed their castles find that, once again, they hold of the government (Testimony of
Steven J. Eagle, 2005).
Kelo offers a fascinating window on the messy and contradictory urban geographies of
property in contemporary capitalism. New London, like many other cities, is deep in the
embrace of neoliberalism. Its use of publicprivate partnerships, cross-subsidies, and
faith in the redemptive power of private capital reflect the prevailing orthodoxy. Market
solutions, facilitated by the state, will, they hope, lead to a rising tide that will lift all
ships. Economic development claims Michael Joplin, President of the NDLC, is a
communitys best opportunity to create wealth and expand the tax base (this is the
banner for their website at www.ndlc.org).
 KELO, CONTRADICTION, AND CAPITALISM 201

Neoliberalism is not simply an economic ideology. It is also, of course, deeply political

and legal. Private property, in particular, is seen as the foundation for individual self-interest
and optimal social good. In this, it could be said to be conservative and regressive. Yet
neoliberal urban development is also expansionary and revolutionary. When wedded to
capitalist urbanization, it requires the constant creative destruction of the urban landscape.
Devalued assets, such as Fort Trumbulls depressed landscape of single-family homes
and abandoned military installations, are to be sacrificed on the alter of highest and best
use. The economic impetus provided by Pfizer must be capitalized upon in order, it
seems, to attract a new clientele of middle-class owners, attracted by the same river view
that Ms. Kelo enjoys, to the promised riverwalks, restaurants, and marinas.
Neoliberalism entails a complicated redrawing of the publicprivate divide. On the
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one hand, the distinction, long central to liberal legalism, must be sharpened. The state
must withdraw from interventions into the private domain. Yet, in other ways, neolib-
eralism requires the mobilization of the state for private ends. For the power of private
property and rugged individual entrepreneurialism to be unleashed requiresas
alwaysthe state. The NDLC, in a report, outlines several justifications for state inter-
vention via eminent domain. This includes boosting value,4 creating civic pride, and
building competitive advantage. Indeed, the NLDC (2005) goes so far as to warn that
without eminent domain, Connecticut will be at a severe, if not hopeless disadvantage
compared to other states. Eminent domain, it argues, is a good thing when it serves a
good purpose such as economic development. Without the power of eminent domain,
cities will become more dependent on state dollars and less likely to attract the economic
capital required to sustain themselves. Our state and nation will be worse off if we
abdicate our responsibility to revitalize dying and distressed communities and dash the
hopes of their citizens for jobs, education, and a better life (no page). The heavy hand of
the state, much maligned by neoliberals, appears here as an essential tool for the entrepre-
neurial city. The Wall Street Journal noted that local and state governments have increas-
ingly embraced eminent domain as an essential marketing tool to lure footloose capital
(Starkman, 1998).
But clearly theres a problem here. Urban policyfrequently enacted in order to
protect private property, sustained according to the logic of private property, or entailing
the extension of private property to the public domainmust, on occasion, dispossess.
This requires some ideological legerdemain. Marx noted the stoical peace of mind with
which the political economist regards the most shameless violation of the sacred rights
of property and the grossest acts of violence to persons, as soon as they are necessary to
lay the foundations of the capitalistic mode of production (Marx, 1975, pp. 717718).
Similarly, notes the NLDC (2005, no page), optimistically: While the use of eminent
domain might force a few property owners to shift their investments, the rising tide of a
successful municipal development project lifts the values of many home and business
owners who benefit from increased investment. Ideally, the NDLC notes, even those
whose properties are condemned will recognize these benefits, and selflessly relinquish
their title in the name of state and nation (their website grumbles about those too

4
According to the NDLC, New London real estate values for apartment buildings nearly tripled between 2000
and 2005 (from $31.72/square foot to $84.99; New London Development Corporation, 2004, p. 6).
 202 NICHOLAS BLOMLEY

short-sighted and selfish to not do this). For law and economics guru, Richard Posner, they
are holdout owners, who serve to undermine economic efficiency (The Kelo Case, 2005).
It has ever been thus. Rural enclosure, urban renewal, colonial dispossession, and con-
temporary gentrification all entail the massive reworking of property relations, frequently
justified according to imperatives of improvement, productivity and higher and better
uses (Harvey, 2003). This may entail the enclosure of assets held in common (Blomley,
in press), or, as here, the revalorization of private assets. Yet while Kelo must be seen in
historical context, the contemporary sanctity accorded to private property, and the intense
policing (and frequent transgression) of the dividing line between public and private in
the current neoliberal moment makes the contradiction between private property rights
and capitalist creative destruction all the sharper. The upheaval along this ideological
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faultline has thrown together strange bedfellows. Amici curiae in support of Susette Kelo
included libertarian and property-rights organizations such as the Property Rights
Foundation, the Cascade Policy Institute, the Cato Institute, the Tidewater Libertarian
Party, the Mountain States Legal Foundation and the Institute for Justice. Yet supporting
briefs were also filed by the Congress for New Urbanism, Jane Jacobs, the National Asso-
ciation for the Advancement of Colored People, and the American Association of Retired
People. The decision caused considerable controversy. Libertarians proposed seizing
Justice Souters home in Weare, New Hampshire, via eminent domain to build a Lost
Liberty Hotel, featuring a Just Desserts Caf (Press release, 2005). In January 2006,
BB&T Corporation, a large bank, announced that it would not lend to developers for
private projects on land taken by private citizens using eminent domain, holding that the
Kelo ruling was morally objectionable and a violation of basic rights (Masters, 2006). A
number of states have subsequently passed laws limiting eminent domain, and proposals
have been made for changes to federal law.
For the dissenting justices, the majority are undoing three centuries of American liber-
alism in what OConnor, quoting Justice Chase, terms a denial of the great first princi-
ples of the social compact. The limits on state takingsnow effacedserve to protect
the security of property, which, she notes, Hamilton characterized at the Philadelphia
Convention as one of the great obj[ects] of Gov[ernment]. That taking be for a public
use, and that just compensation be paid ensures, she argues, stable property owner-
ship by providing safeguards against excessive, unpredictable, or unfair use of the
governments eminent domain power (Kelo, p. 4). Thomas quotes Blackstone against
the majority: the law of the land, they both thunder, postpone[s] even public necessity
to the sacred and inviolable rights of private property (Kelo, p. 1). Yet some defenders
of Kelo see it as advancing private property. Eddie Perez, testifying before the Senate
Judiciary Committee on behalf of the National League of Cities, characterized eminent
domain as a powerful economic development tool. Congressional limitations on
eminent domain would, he feared, mean that we would have fewer people becoming
homeowners, which means fewer participants in the Administrations concept of an
ownership society (Testimony of the Honorable Eddie A. Perez, 2005).
The decision in Kelo is instructive in another way: The liberal world of property is, in
theory, a flat one. There is a putative equality among property owners, despite social
differences: The poorest man may in his cottage bid defiance to all the forces of the
Crown, claimed Lord Carrington in 1765: As long as he owns, the King of England
cannot enterall his force dares not cross the threshold (Entick v. Carrington, 1765).
 KELO, CONTRADICTION, AND CAPITALISM 203

OConnor emphasizes this imagined equality, quoting James Madison: That alone is a
just government which impartially secures to every man, whatever is his own (Kelo, p.
13). Both OConnor and Thomas argue that the Kelo taking fails this test. And, in so
doing, they begin to demonstrate another interesting contradiction to neoliberal property.
As we have seen, property is at the core of neoliberalism, yet is itself vulnerable. This
vulnerability, however, is not general, but socially asymmetric. Property owners are not
treated impartially under neoliberalism. For OConnor, an acceptance of economic devel-
opment [or perhaps gentrification] means that:

[T]he sovereign may take private property currently put to ordinary private use, so
long as the new use is predicted to generate some secondary benefit for the public
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such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly
any lawful use of real private property can be said to generate some incidental
benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are
enough to render transfer from one private party to another constitutional, then the
words for public use do not realistically exclude any takings. (Pp. 89)

Nothing is to prevent the State from replacing any Motel 6 with a Ritz Carlton, any
home with a shopping mall, or any farm with a factory (Kelo, pp. 1011), she worries.
But the social geographies of dispossession have always been uneven. Susette Kelo, in
testimony before the Senate Judiciary Committee on the case, noted that the effect of the
redevelopment was that the poor and middle class had to make way for the rich and
politically connected (Testimony of Susette Kelo, 2005). Hilary Shelton of the NAACP
noted the racial inequalities of eminent domain:

Racial and ethnic minorities are not just affected more often by the exercise of
eminent domain power, but they are almost always affected differently and more
profoundly. The expansion of eminent domain to allow the government or its
designee to take property simply by asserting that it can put the property to a higher
use will systemically sanction transfers from those with less resources to those with
more. (Testimony of Hilary O. Shelton, 2005)

Take, for example, the case of the West End, a depressed neighborhood within
Lakewood, Ohio. In 2003, the city developers approved a proposal to build a new shop-
ping center, movie theater and upscale townhouse complex, proposing to raze homes or
purchase them through eminent domain. To facilitate this, the city designated the West
End as blighted. Council and private business supported the redevelopment, arguing that
it would enhance the tax base and the quality of life. Residents bitterly opposed the plan,
characterizing it as a form of class-based gentrification. The proposal was subsequently
defeated by referendum (Salkin and Lucero, 2005).
One could almost pity the members of the Supreme Court. Put simply, their choice
was stark: economy or property.5 The contradictory relation between the two is far from

5
Or, perhaps, the choice is between the different ends of property: capital investment and development, or
home-ownership. Interestingly, these are often imagined as homologous, such that the figure of the single-
family home often stands in for private property tout court (Blomley, 2004).
 204 NICHOLAS BLOMLEY

unusual in other social fields. We see it played out, for example, in local struggles around
gentrification or battles around intellectual property. What is perhaps more unusual is to
see the contradiction made so nakedly manifest within the hallowed halls of the Supreme
Court. It may sound old fashioned to talk of the functions of law within capitalism,
wherein law serves to sustain both accumulation and legitimation, while also noting the
inherent contradictions of such interventions. Yet as we watch the judiciary tie them-
selves in liberal knots in the Kelo case, such arguments seem once again instructive.

REFERENCES

Blomley, N., 2004, Unsettling the City: Urban Land and the Politics of Property. New
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York, NY: Routledge.

Blomley, N., in press, Enclosure, common-right and the property of the poor. Social and
Legal Studies.
Harvey, D., 2003, The New Imperialism. Oxford, UK: Oxford University Press.
The Kelo Case, Public Use, and Eminent DomainPosner Comment, 2005, Last
accessed May 6, 2007, from http://www.becker-posner-blog.com/archives/2005/06/
the_kelo_case_p.html
Marx, K., 1975, Capital (Volume 1). New York, NY: International Publishers.
Masters, B. A., 2006, BB&T restricts loans to developers. Washington Post, January 26,
p. D01.
New London Development Corporation, 2004, Bringing Renewed Hope to New London:
NLDC Annual Report. New London, CT: New London Development Corporation.
New London Development Corporation, 2005, A Review and Analysis of Eminent
Domain. Retrieved May 6, 2007, from www.nldc.org/documents/NLDC-EMINENTDO-
MAINWP.pdf
Pitney, T., 2006, Loans, and takings, and buildingsOh my! A necessary difference
between public purpose and public use in economic development. Syracuse Law
Review, Vol. 56, No. 2, 321352.
Press release, 2005, Last accessed May 6, 2007, from http://www.freestarmedia.com/
hotellostliberty2.html
Salkin, P., and Lucero, L. E., 2005, Community redevelopment, public use, and eminent
domain. The Urban Lawyer, Vol. 37, No. 2, 201241.
Starkman, D., 1998, Take and give: Condemnation is used to hand one business property
to another. Wall Street Journal, Dec. 2, p. A1.
Testimony of Hilary O. Shelton, Director NAACP, Washington Bureau, before the
Senate Judiciary Committee of the U.S. Congress, September 20, 2005, The Kelo
Decision: Investigating Taking of Homes of Other Private Property. Last accessed
May 6, 2007, from http://judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4660
Testimony of the Honorable Eddie A. Perez, Mayor, representing the National League of
Cities, before the Senate Judiciary Committee of the U.S. Congress, September 20,
2005, The Kelo Decision: Investigating Taking of Homes of Other Private Property.
Last accessed May 6, 2007, from http://judiciary.senate.gov/testimony.cfm?id=
1612&wit_id=4659
Testimony of Steven J. Eagle, Professor Law, George Mason University, before the
Senate Judiciary Committee of the U.S. Congress, September 20, 2005, The Kelo
 KELO, CONTRADICTION, AND CAPITALISM 205

Decision: Investigating Taking of Homes of Other Private Property. Last accessed

May 6, 2007, from http://judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4662
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Private Property. Last accessed May 6, 2007, from http://judiciary.senate.gov/testi-
mony.cfm?id=1612&wit_id=4657

CASES CITED

Berman v. Parker, 1954, 348 US 26.

Entick v. Carrington, 1765, 19 St Tr 1029 at 1066.
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Hawaii Housing Authority v. Midkiff, 1984, 467 US 229.

Lucas v. South Carolina Coastal Council, 1992, 505 US 1003.
Susette Kelo et al. v. City of New London, Connecticut, et al., 2005, 545 US 469.