Document Type

Article

Publication Date

2025

Abstract

The home enjoys special constitutional protections across multiple amendments in the Bill of Rights, yet the Takings Clause remains an anomaly, offering no unique safeguards for residential property. Justice Clarence Thomas’s dissent in Kelo v. City of New London underscored this inconsistency, questioning why the Court grants heightened protection to the home in contexts like the Fourth Amendment but not under the Takings Clause, where homes can be seized with minimal constitutional scrutiny. Twenty years after Kelo, the doctrinal and statutory landscape may be poised to resolve this paradox.

The backlash against Kelo among state legislatures and courts represented a sharp rebuke of federal doctrine, overwhelmingly rejecting the Supreme Court’s broad conception of public use and creating an unprecedented divergence between federal and state public use doctrine. While Kelo maintained federal deference to legislative determinations of public use, states responded by enacting reforms that imposed stricter limitations on economic development takings and narrowed their definitions of public use to better protect residential property. Two decades later, this state-level resistance provides a blueprint for strengthening home protections in takings jurisprudence.

Against this backdrop, this Article argues that the Supreme Court’s history of takings federalization—borrowing and adopting state exactions doctrines to shape its federal exactions jurisprudence—offers a compelling interpretive model for reconsidering its public use doctrine. Indeed, the post-Kelo consensus among states in narrowing public use could inform a more restrictive federal approach. By examining the overwhelming trend in state laws limiting public use, the Court could incorporate these developments into federal doctrine. Given that the protection of homes, like Ms. Kelo’s pink house, was the driving force behind the backlash, the Court could embrace Justice Thomas’s Kelo dissent by establishing heightened scrutiny or enhanced just compensation for home takings.

Finally, federalizing state public use doctrine and creating special protections for homes would resolve the long-standing doctrinal inconsistency that places the Takings Clause at odds with other home-protective provisions in the Bill of Rights, such as the First, Second, Third, and Fourth Amendments. By aligning takings law with these other constitutional safeguards, the Court could restore coherence to its federal constitutional framework, ensuring that homes receive the same level of protection under the Takings Clause as they do in other constitutional contexts.

Download

Share

COinS