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Susette Kelo's 'Little Pink House' movie shed lights on an often-ignored subject: Whether or not the government has the right to take your property.
Like some sort of HGTV dream, Susette Kelo found a house in the perfect location and within her budget. She lovingly restored and updated it, and lived there happily ever after. Well, until she was thrown out, to be precise. Because it wasn’t an HGTV dream, but an eminent domain nightmare.
Her “little pink house” (the color was actually called “Odessa Rose”) was condemned to make space for an industrial development project. She fought the condemnation all the way to the Supreme Court but — in what was something less than the usual rosy Hollywood ending — she lost. Her home was taken, her neighborhood was demolished, and then, adding insult to injury, the industrial redevelopment fell through and it turned out to have all been for nothing.
And though the ending wasn’t Hollywood-rosy, her story is now the subject of a Hollywood movie, Little Pink House, starring Catherine Keener as Susette Kelo, Jeanne Tripplehorn as the delightfully smug and manipulative leader of the redevelopment effort, and Callum Keith Rennie as Kelo’s boyfriend and later husband.
I was fortunate enough to get an advance screener, and showed the film, which opens later this week, to my Constitutional Law class at the University of Tennessee. (You can see a trailer here.) My verdict: Little Pink House is an outstanding and moving treatment of a legal issue that gets far too little attention: The extent to which the state can take your property away just because it thinks it has a better use for it.
The Bill of Rights is supposed to protect your property. It provides that private property can’t be taken from its owners except for public use, and with the payment of “just compensation” to its owners. But the way that both of those concepts have been applied by the courts is problematic, to say the least.
Few people have problems with taking private property for obvious public uses like roads, bridges, or schools. But courts have interpreted “public use” to mean pretty much anything the government says is for the benefit of the public, or for a “public purpose.” In the 1954 case of Berman v. Parker, the Supreme Court held that “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive.” Or to put it more plainly, the public interest is whatever the legislature says it is.
As for compensation, what’s considered “just” is basically the market value of the property. But often the property is more valuable to its owners than to the market, which is why they haven’t sold. Perhaps it’s because it’s a farm or home that’s been in the family for generations, imbuing it with memories that the family values but the market doesn’t. In Susette Kelo’s case, she found a modest home that she could afford with a great water view. That wasn’t something she could easily replace — the Little Pink House press kit notes that the filmmakers had a very hard time finding a similar location for filming, because there aren’t a lot of really inexpensive houses with great water views out there — and she also valued her home because she had put a lot of her own sweat and effort into fixing it up, something any HGTV viewer should be able to appreciate.
So when Pfizer built a plant, and the New London Development Corporation (an arm of the State of Connecticut) decided that Susette Kelo’s house would be more valuable to the community, by generating more property taxes and jobs, if it were in someone else’s hands, the law was pretty unfavorable. But Kelo fought, and took her case all the way to the Supreme Court.
Unlike another film I sometimes show, the superb Brown v. Board of Education docudrama, Separate But Equal, there’s no happy ending to Little Pink House. The case was argued ably by the Institute For Justice, a libertarian public-interest law firm, but in the end, she lost 5-4. Susette Kelo had to move, her neighborhood was demolished, and then, in a harshly ironic development, Pfizer pulled out, and the former site of her house is now just a vacant lot, shown at the end of the film. Dissenting from the decision, Justice Sandra Day O’Connor wrote, “The specter of condemnation hangs over all property. 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.”
I think that’s wrong, and, judging by polls at the time of the decision, so did most Americans. In fact, a Christian Science Monitor poll showed that 93% of Americans thought the Court got it wrong, and many state legislatures and supreme courts instituted statutory or constitutional changes to make taking private property more difficult, especially when the purpose is to transfer ownership to another private entity.
Little Pink House is worth seeing, even if you’re not a constitutional law student. Sure, the good guys lost. But sometimes it’s worth fighting even when you lose.
