Optimism And Pessimism About the Kelo Backlash (Updated!)


by Timothy Sandefur

Combs Spouts Off has some reflections on Bert Gall’s TCS article about whether the Kelo backlash has accomplished significant results. As I mentioned earlier, my initially negative assessment of the reforms we've seen in eminent domain have been somewhat tempered by more recent laws that do provide powerful protections for property rights—laws such as Florida's, which specifically declare that government may not seize property and give it to private developers by simply declaring the property to be "blighted."

I am not a pessimist about eminent domain—in fact, I was the first writer to take an optimistic view of the Kelo case, pointing out shortly after it was decided that it was the first time any Supreme Court Justice (let alone four!) had found that the Fifth Amendment limited the power of eminent domain. But I'm also not an optimist in the face of the facts. Most of the laws we’ve seen since the Kelo case have provided little meaningful protection for property rights. That’s about 2/3. We can hope for more significant protections in the future, but for now, most state legislatures seem content to put a bandaid on the problem by saying it’s okay to go on seizing property if they call it "blighted."

Optimism and pessimism, I think, is really beside the point. Eminent domain abuse, as I argue in my forthcoming Michigan State Law Review article, is only a symptom of a much wider breakdown in political philosophy—a breakdown, that is, in Americans’ understanding of property rights, that is traceable to the Progressive Era.

Political and legal elites today see property rights as essentially permissions granted to citizens by the government, and subject to government expropriation in the service of the "greater good." As Justice Brandeis put it, "rights of property and the liberty of the individual must be remolded, from time to time, to meet the changing needs of society." Without changing that cultural assumption—and restoring the Founders' view that property is a fundamental right that government has no legitimate authority to violate—any other reform can only be a surface-level patch. But cultural change requires a reawakening to our founding principles that will take long, hard work.

But that work is progressing. Americans are waking up to the importance of property rights. Even liberals, who have worked long and hard to the detriment of property rights, are being forced to reconsider their views in at least some degree, and to see that the Progressive theory lays its burdens hardest on the poor and the middle class. They're learning—slowly but surely—that when government can take away the earnings of the rich to give to the poor, the rich will soon learn how to use that trick for themselves. The only proper solution—the only way to live in civilized society—is to stop using government’s coercive powers against each other in this way, and, in James Madison's words, to "impartially secure[] to every man, whatever is his own."

Update: Ilya Somin has some further thoughts here.