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Opinion The political and judicial reaction to Kelo

My last two posts based on The Grasping Hand, my new book on Kelo v. City of New London, criticized the Kelo decision and explained why it is wrong from the standpoint of both originalism and living constitutionalism. In this post, I consider the massive and unprecedented political reaction to Kelo.

Most Supreme Court cases generate little or no reaction from the general public. Kelo’s upholding of the taking of private property for transfer to other private owners for “economic development” was a rare exception. It attracted intense and widespread hostility. Polls showed that over 80% of the public disapproved of the ruling, and that overwhelming opposition persisted even in surveys taken several years after the ruling came down. The opposition cut across conventional partisan, ideological, racial, and gender divisions. This was a rare issue on which Rush Limbaugh, Ralph Nader, libertarians, and the NAACP were all on the same side.

I. A Wave of Legislative Reform.

As a result of this upsurge of popular anger, some 45 states have enacted eminent domain reform laws in the ten years since Kelo (most in the first three years after the ruling). No other Supreme Court decision in all of American history has generated so much state legislation.

This enormous backlash led some commentators to conclude that there was no need for judicial review to protect property rights against economic development condemnations, because the political process had taken care of the problem. There was indeed great progress in many states. But the real achievements of the wave of eminent domain reform fell short of the appearance. In more than half the states that enacted post-Kelo reform laws, the new legislation only pretended to restrict economic development takings, without actually doing so.

The most common structure for ineffective post-Kelo reform laws is one that forbids economic development takings that transfer property to private parties, but allows such condemnations if the area in question is “blighted.” Then, blight is defined so broadly that almost any neighborhood qualifies. Pretty much any area that might be condemned for economic development can be thereby be declared blighted and taken on that basis.

Several factors account for the ubiquity of ineffective post-Kelo laws. Perhaps the most important was widespread political ignorance. Survey data I compiled for my research show that, two years after Kelo, only 13% of Americans knew whether their state had enacted effective post-Kelo reform laws or not, and even that result may overstate the true level of knowledge. Understandably, most voters don’t follow the details of eminent domain reform closely enough to be able to figure out whether a given law meaningfully constrains takings or not. This ignorance enabled legislators to pretend to satisfy public demands for change, while simultaneously avoiding antagonizing well-organized interest groups that benefited from the status quo.

Public ignorance also helped account for the timing of the Kelo backlash itself. Defenders of the decision correctly point out that it was largely consistent with previous Supreme Court precedent. But before the national publicity generated the Supreme Court case, most ordinary Americans simply didn’t know that law permitted economic development takings of the kind upheld in Kelo. If they had known, public anger might well have arisen much earlier.

Finally, as I explain more fully in the book, political ignorance helps explain why reforms adopted by citizen-initiated referendum were, on average, much stronger than those enacted through the ordinary legislative process. The difference is due to the fact that post-Kelo referendum questions were usually drafted by property rights advocates rather than by politicians seeking reelection. Unlike the latter, the former had no incentive to exploit public ignorance in order to appease interest groups that benefit from expansive eminent domain power. They genuinely wanted to increase protection for property rights, and drafted their initiatives accordingly.

Despite its limitations, the political backlash against Kelo resulted in substantially increased protection for property rights in numerous states. In much of the country, the power of eminent domain is now more tightly constrained than it has been in decades.

II. The Judicial Reaction.

In addition to the high-profile political backlash, Kelo also produced a less well-known judicial reaction. In the aftermath of the federal Supreme Court ruling, the state supreme courts of Ohio, Oklahoma, and South Dakota all rejected Kelo as a guide to the interpretation of their state constitutions’ public use clauses, holding that economic development takings violated state constitutional law even if they were permissible under the Fifth Amendment. Several other state supreme courts also rejected key elements of Kelo’s reasoning, even though they did not address the issue of economic development takings directly. Kelo’s generally negative reception from state courts was in sharp contrast to the impact of previous Supreme Court decisions endorsing a very broad interpretation of public use. In the years after Berman v. Parker (1954), the first such ruling, numerous state high courts adopted Berman as a model for the interpretation of their state public use clauses. The far more negative reception of Kelo further underscores the extent to which the debate generated by that decision has undermined the previous seeming consensus in favor a broad view of public use.

Between them, the judicial and legislative reactions against Kelo have generated great progress for property rights. But much still remains to be done. Many states continue to allow Kelo-style takings, either through expansive “blight” designations or by some other means. And only a few have banned blight condemnations completely. Condemnation is the wrong tool for promoting development even in neighborhoods that are genuinely dilapidated. Condemning the neighborhood in order to save it does more to harm the urban poor than benefit them.

III. Some Lessons for Constitutional Reform Movements.

The successes and failures of the Kelo backlash teach valuable lessons for future reform efforts. One is that judicial intervention is often needed to fully protect even those constitutional rights that enjoy widespread public support. Political ignorance, interest group lobbying, and other factors will often prevent the legislative process from effectively protecting even the most popular individual rights.

In addition, the Kelo experience strongly suggests that effective constitutional reform requires a combination of litigation and political action. if not for the publicity generated by a high-profile Supreme Court case, there would not have been any wave of legislative reforms. And that political reaction, in turn, makes it more likely that the Supreme Court might eventually overrule Kelo in the future. Courts do not simply follow majority public opinion. But, historically, they are much more likely to overrule a widely reviled decision than one that is popular. Previous successful constitutional movements, such as the civil rights movement, the gun rights movement, and now the gay rights movement, all succeeded by utilizing both litigation with political mobilization, with efforts in one arena reinforcing those in the other. The property rights movement would do well to continue following this model.

Finally, the reaction against Kelo is a rare recent example of relatively successful cross-ideological cooperation between left and right, especially on an economic issue. For the first time in decades, liberals, conservatives, and libertarians could agree on the importance of protecting an “economic” right. History shows that strong, consistent protection for any constitutional right requires at least some substantial degree of bipartisan and cross-ideological support. As yet, the cross-ideological revulsion against Kelo has not yet penetrated the federal judiciary or the legal academy. For the most part, public use issues continue to divide legal scholars and federal judges along predictable left-right lines (though even this is a major change from the days when even most conservative judges tended to endorse the broad view). This continuing ideological division could potentially erode over time. Future generations of liberal jurists might eventually prefer the views of Jane Jacobs, Ralph Nader, and the NAACP, over those of the Kelo majority.