Has the Kelo Backlash Been Effective?

by Timothy Sandefur

Bert Gall from the Institute for Justice and Prof. Ilya Somin at the Volokh Conspiracy have a bit of a debate going over whether the nation's reaction to the Kelo case has actually resulted in substantial protections for private property owners. Since this is the subject of my 2006 article in the Michigan State Law Review, I thought I’d offer my perspective.

I think the Kelo backlash has been marvelously successful in ways other than legislative, to begin with. Before Kelo was decided, most Americans perhaps knew about eminent domain, and perhaps had heard of cases like Poletown twenty years ago, but it was not a major part of their political vocabulary. Today, thanks almost entirely to the Institute for Justice, Kelo is a household word (and a despised one). No bureaucrat can propose a redevelopment project without being called upon to explain himself with regard to eminent domain. Even some legitimate instances of eminent domain have become subjects of political controversy because people are so sensitive to the abuse of this awful power. And two years after the Kelo decision was uttered, most Americans are still powerfully upset about it. That alone is a major victory in a nation where just about none of the average citizens could name the Justices on the Supreme Court.

If anything, the reaction to Kelo has been muted by the enormous political inertia that is a well-known aspect of the regulatory welfare state. Private interest groups are able to manipulate legislators, as well as the initiative process, in ways that delay or distract the general public from its purposes. Too many examples of these (like the Ohio legislature's ridiculous "moratorium," or Delaware's meaningless disclosure requirements) are chronicled in my paper, and in Prof. Somin's.

So it is true that there have been a great many disappointments in the new laws—as I myself note in my paper, the majority of the laws passed have, indeed, failed to restrict eminent domain abuse in cases of "blight," largely because bureaucrats insist on drawing a self-serving and dishonest distinction between "development" condemnations and "redevelopment" or "blight" condemnations. But of course, it is also true that there have been some spectacular successes in the response to Kelo. Gall is correct that the Florida law is one of the most powerful limits on eminent domain we've seen. Other states have passed similar legislation. Now, it's true that the strongest legislation has passed in states where the abuse of eminent domain is uncommon or nonexistent: that's because those states have political cultures that tend to respect property rights anyway. That certainly doesn't make those laws "ineffective." We wouldn't say that a person who eats healthy anyway has failed to follow a diet effectively when he turns down an offer of French fries. But the places where eminent domain abuse is most common—Missouri, for example, or California—have become home to private interests that have managed to prevent reform, and that the most drastic proposals have not prevailed, for the most part. (Although even here, cases like Arizona are exceptions: Proposition 207 was one of the strongest property rights measures proposed, and it managed to pass.) In a nation of fifty states and 250 million people, anything that gives rise to new legislation in 34 states and initiatives in 9 states, is a success—even if devils have been put into the details. Devils are always put into details. That's what being a lawyer is all about! But I certainly know of nothing like what we have seen in this instance.

Most of all, the final verdict on the Kelo backlash cannot be heard until more state litigation has been completed. So far, only Ohio's courts have pronounced on this question post-Kelo. Until we hear more from the state courts, we should reserve judgment on what the reaction against the Kelo decision has really done.

The bottom line is that Somin is correct that serious flaws exist in the legislation that has passed so far—but Gall is correct that we can't let that distract us from the real progress that has been made, not only in legislation, but in the law generally, and—most importantly—in the political culture of private property rights.