The Public Use Clause: From Kelo to Affordable Housing Battles
I. Introduction: The Elasticity of “Public Use” II. Kelo v. City of New London: Redefining “Public Use” III. The Public Backlash and Legislative Recoil IV. Affordable Housing and the Resurrection of the “Public Purpose” Doctrine V. Critiques and Counterbalances: Property, Equity, and the Role of Government VI. Conclusion: The Ongoing Evolution of “Public Use” The Public Use Clause: From Kelo to Affordable Housing Battles When “Economic Development” Justifies Condemnation
I. Introduction: The Elasticity of “Public Use”
The Fifth Amendment of the United States Constitution, ratified in 1791 as part of the Bill of Rights, solemnly asserts that “private property be taken for public use, without just compensation.” At face value, this clause—commonly referred to as the Takings Clause or the Public Use Clause—strikes a balance between the state’s sovereign authority (eminent domain) and the individual’s inviolable right to property. Rooted in Enlightenment thought, particularly the Lockean conception of property as an extension of one’s personhood and labor, the clause was designed to limit the government’s power by demanding two critical preconditions for any taking: first, that the use must be public, and second, that the owner must receive fair compensation. Initially, “public use” was interpreted narrowly: it encompassed roads, bridges, canals, or other tangible, publicly accessible infrastructures. The paradigm was straightforward—property could be taken if the public directly used or benefited from it. This was consistent with early American suspicion of centralized power and the revolutionary conviction that property rights were essential to personal liberty.
However, as the United States industrialized and urbanized throughout the 19th and 20th centuries, the practical needs of governance began to strain this restrictive interpretation. Courts gradually adopted a more functional approach, reading “public use” to include “public purpose.” This subtle but momentous shift allowed takings not only for direct use by the public but also for uses deemed beneficial to the public welfare—such as slum clearance, blight removal, and eventually, economic development. This expansion culminated in the Supreme Court’s controversial 2005 decision in Kelo v. City of New London. In that case, the City of New London, Connecticut, approved a redevelopment plan aimed at revitalizing a struggling neighborhood through a partnership with a private developer. The plan included office space, housing, and retail—projected to create jobs and increase tax revenues. Susette Kelo and several other homeowners, whose well-maintained properties were targeted for condemnation despite not being blighted, challenged the city’s use of eminent domain. They contended that transferring land to another private party, even under the rubric of “economic development,” violated the Public Use Clause. The Supreme Court, in a narrow 5-4 ruling, upheld the taking. Writing for the majority, Justice John Paul Stevens reasoned that the plan served a legitimate public purpose—economic revitalization—and thus satisfied the constitutional requirement. The Court deferred to the judgment of the local authorities, emphasizing the importance of broad governmental latitude in pursuing comprehensive urban planning. In doing so, the Court reaffirmed and extended its earlier precedents—such as Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984)—which had already embraced the “public purpose” rationale. Yet the Kelo decision marked a turning point—not in constitutional doctrine alone, but in public consciousness. The ruling generated immediate and intense backlash across the political spectrum. Conservatives condemned it as an assault on individual rights and the sanctity of private property; progressives criticized its potential to displace poor and marginalized communities under the guise of development. Ironically, the decision united libertarians, civil rights advocates, and property owners in collective outrage. This reaction was not merely legal but deeply moral. Many Americans viewed Kelo as emblematic of a growing imbalance between the citizen and the state, between ordinary homeowners and corporate entities cloaked in the mantle of public interest. The decision provoked fears that the government, allied with powerful private interests, could dispossess the less powerful for speculative gain. More than forty states swiftly enacted reforms to limit the scope of eminent domain, underscoring the perceived need to re-anchor the Takings Clause to its original protective intent. The broader implication of Kelo lies in its reaffirmation of a judicially sanctioned elasticity within the Public Use Clause—a concept once defined by the physical occupancy of the public now includes the more abstract promise of economic improvement. This interpretive elasticity has had wide-ranging consequences, influencing how cities approach urban redevelopment, gentrification, and the creation of affordable housing. Today, the Kelo precedent continues to reverberate in legal and policy debates. It underpins arguments for using eminent domain to seize vacant properties for low-income housing or to combat urban decay. Yet, the shadow of Kelo lingers as a cautionary tale: that when public purpose becomes indistinguishable from private profit, the constitutional promise of protection may dissolve into a bureaucratic justification for displacement. The ongoing debate reflects a nation still struggling to define what truly constitutes a “public use”—and how far the state may go in redefining the boundaries of ownership, home, and community.
II. Kelo v. City of New London: Redefining “Public Use”
In Kelo v. City of New London (545 U.S. 469, 2005), the United States Supreme Court confronted a fundamental constitutional question: Can the government employ its power of eminent domain to transfer property from one private owner to another if the projected outcome is economic development? At the heart of the case was a complex tension between the classical liberal ideal of secure private property rights and the modern state's expansive vision of public welfare through urban planning. The City of New London, Connecticut, faced economic stagnation following the closure of the Naval Undersea Warfare Center in 1996. To revitalize the area, the city developed a comprehensive plan aimed at stimulating the local economy, attracting high-income residents, and increasing municipal revenues. The development was anchored around a proposed facility for the pharmaceutical giant Pfizer and included office spaces, a hotel, and residential and retail zones. This plan was orchestrated by the New London Development Corporation (NLDC), a private nonprofit acting on the city’s behalf. To implement the plan, the city invoked its power of eminent domain to acquire over 100 privately owned properties in the Fort Trumbull neighborhood. While most owners agreed to sell, a group of homeowners—led by Susette Kelo—resisted, arguing that their well-maintained homes were neither blighted nor a public nuisance. They asserted that transferring their property to another private party for the sake of economic speculation did not constitute “public use” under the Fifth Amendment. The Connecticut Supreme Court sided with the city, and the case ascended to the U.S. Supreme Court. In a deeply divided 5–4 decision, the majority upheld the city’s action. Justice John Paul Stevens, writing for the majority, emphasized a broad interpretation of “public use.” Drawing from earlier cases—Berman v. Parker (1954), which allowed takings for urban renewal, and Hawaii Housing Authority v. Midkiff (1984), which permitted redistribution of land to break up oligopolistic ownership—Stevens concluded that promoting economic development is a “traditional and long accepted function of government.” Because the project was part of a carefully considered development plan, and not a covert favor to a private party, it was deemed to serve a legitimate public purpose. Justice Anthony Kennedy’s concurrence was pivotal, for while he agreed with the majority’s conclusion, he added a crucial qualification: courts must still scrutinize takings to ensure they are not mere pretexts for private benefit. Where there is no integrated development plan or evidence of comprehensive public interest, Kennedy suggested, heightened scrutiny may apply. The dissent, led by Justice Sandra Day O’Connor, was emphatic in its warning. O’Connor argued that the decision erased the distinction between public and private use, thereby endangering all private property. Her powerful admonition—that “the specter of condemnation hangs over all property” and that “the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process”—articulated the broader concern that Kelo could enable economic majoritarianism: the sacrifice of the less powerful for the speculative benefit of the city’s elite or corporate partners. Justice Clarence Thomas, in a separate dissent, took a more originalist position. He argued that “public use” should be understood literally: only actual use or access by the public should qualify. He warned against the evolution of judicial deference into judicial abdication, noting that a historically narrow reading of the Takings Clause is a crucial safeguard against both governmental abuse and socio-economic dislocation. The Kelo ruling did not occur in a vacuum. It reflected broader trends in neoliberal governance, where municipalities increasingly partner with private capital to rebrand themselves as nodes in global competition. In this climate, cities are incentivized to attract investment and tax revenue at all costs, sometimes at the expense of long-standing communities. Kelo legitimated this tendency by judicially endorsing the idea that the promise of economic uplift could satisfy constitutional requirements, even if the tangible beneficiaries were developers and distant investors. Critically, the aftermath of Kelo undermined the city’s rationale. The Pfizer facility, around which the entire redevelopment plan revolved, never materialized as intended. Within a few years, the land remained vacant, and the promises of jobs and revenue went unfulfilled. This post-facto failure served to confirm the worst fears of the dissenters: that government-sanctioned transfers of property for private development could be built on fragile economic projections and political expedience, rather than on tangible and demonstrable public needs. From a legal perspective, Kelo reaffirmed the Court’s commitment to a deferential standard toward local legislative judgments regarding public purpose. Yet from a philosophical and civic perspective, it revealed the precariousness of property rights in an era of privatized governance and speculative urbanism. By endorsing a vision of “public use” so capacious that it could accommodate corporate relocation schemes, the Court arguably signaled a transformation in the very meaning of “public”: from a collective good to a calculated utility. The decision continues to provoke intense debate in law schools, legislatures, and community forums alike. It sits at the intersection of constitutional interpretation, economic policy, and ethical governance, reminding citizens and legal scholars that “public use” is not merely a technical phrase—but a concept through which a society defines its values, its priorities, and the scope of its democratic imagination.
III. The Public Backlash and Legislative Recoil
The public response to Kelo was swift and overwhelmingly negative. Critics decried the ruling as a capitulation to corporate interests and a blow to individual property rights—particularly for vulnerable or marginalized communities. In the following years, over 40 states enacted legislation or constitutional amendments tightening the standards for eminent domain and restricting takings for economic development purposes. This legislative recoil signaled a cultural and political moment: Kelo was not merely about land—it was about trust in government. It laid bare the perception that private citizens could be displaced for commercial gain under the guise of collective prosperity, a vision of progress that many viewed as undemocratic, inequitable, and susceptible to abuse.
IV. Affordable Housing and the Resurrection of the “Public Purpose” Doctrine
As America grapples with an escalating housing crisis marked by skyrocketing rents, increasing homelessness, and the displacement of low-income residents from urban centers, the debate over “public use” has taken on renewed urgency. In this context, a novel—and for some, radical—application of eminent domain has reentered public discourse: the condemnation of private property for the creation of affordable housing. This approach represents not a retreat from the logic established in Kelo v. City of New London, but an evolution—one that seeks to redirect the broad public purpose doctrine toward more explicitly egalitarian and humanitarian goals. Across the United States, and particularly in high-demand urban areas such as San Francisco, New York City, and Los Angeles, the shortage of affordable housing has reached crisis proportions. Decades of underinvestment in public housing, speculative real estate markets, and restrictive zoning have combined to produce chronic shortages. In response, local governments and housing advocates have begun to explore the use of eminent domain not to clear space for luxury development or corporate interests—as was the case in Kelo—but to secure land for community land trusts, nonprofit housing cooperatives, or government-owned affordable housing projects. I. A Renewed Moral and Constitutional Justification This shift is grounded in a reimagined understanding of what constitutes a legitimate public purpose. Whereas the Kelo majority accepted economic growth and increased tax revenues as sufficient justifications, proponents of housing-related takings argue that access to shelter is a fundamental human necessity—and by extension, an urgent public interest. Indeed, one could argue that affordable housing satisfies the public use requirement more directly than the speculative commercial developments often cited in economic revitalization schemes. From a constitutional standpoint, this interpretation relies on the same flexible reading of the Takings Clause that the Supreme Court adopted in Kelo, Berman v. Parker (1954), and Hawaii Housing Authority v. Midkiff (1984). In all three cases, the Court accepted the premise that government may seize private property not solely for infrastructure or public access, but to address broader social and economic harms—blight, land monopolization, or economic stagnation. Affordable housing advocates thus invoke these precedents not as cautionary tales, but as doctrinal tools to assert that housing inequality, too, is a public harm requiring state intervention. II. Legal and Policy Experiments in Practice In recent years, several cities have tested these ideas. In San Francisco, supervisors proposed using eminent domain to purchase and preserve rent-controlled buildings whose tenants faced displacement by speculative landlords. In New York, progressive legislators have considered bills to allow municipalities to seize derelict or tax-delinquent properties and transfer them to community land trusts. In Los Angeles, where gentrification has pushed longtime residents out of historically Black and Latino neighborhoods, local activists have called on the city to repurpose vacant lots and underused parcels for public housing construction through the use of condemnation powers. These initiatives draw intellectual support from international human rights frameworks, such as the United Nations' declaration that housing is a fundamental human right, and from socio-economic theories that view the commodification of shelter as a root cause of urban inequality. In this view, housing policy must transcend market logic and reflect a deeper commitment to dignity, security, and inclusion. III. Ethical Dilemmas and Structural Risks Yet the moral clarity of this goal does not eliminate the ethical and procedural complexities inherent in the use of eminent domain. Key among them is the question of whose property is being taken. If affordable housing takings target large, absentee landlords, hedge funds, or corporate real estate holders sitting on underutilized land, public support may be widespread. But when seizures affect small property owners—such as immigrant landlords renting out their only asset to support their families—the calculus becomes far more contentious. Without strict safeguards and equitable enforcement, such programs risk reproducing the very injustices they claim to redress. There is also the risk of political instrumentalization. In the name of social justice, municipalities may deploy eminent domain to achieve ulterior goals: political favor, real estate speculation under a “progressive” veneer, or the masking of regulatory failures. Moreover, takings justified by noble ends must still be accompanied by competent, inclusive planning. Poorly executed projects can displace communities under the banner of improvement and result in vacant lots, uninhabitable buildings, or dysfunctional social housing systems, as some post-Kelo urban experiments have illustrated. Furthermore, the reliance on Kelo logic carries an inherent irony. While the decision was once reviled for empowering private gain at the expense of vulnerable homeowners, it now forms the very jurisprudential backbone for takings in service of equity. This ironic reversal underscores the mutable nature of constitutional principles and the fact that their real-world implications depend not only on legal reasoning but on political will, civic accountability, and public trust. IV. Reimagining “Public Purpose” in the 21st Century The reemergence of the public purpose doctrine in the realm of affordable housing invites broader philosophical reflection. What do we consider “public” in a society fractured by wealth disparities and unequal access to shelter? Is the state merely a neutral arbiter balancing market forces, or does it possess a moral duty to intervene where the market fails to provide for the common good? To many housing advocates, the answer is unequivocal: the public purpose must be redefined to include the right to remain, the right to belong, and the right to a dignified existence within one’s community. Read the full article
