Kelo v. City of New London, which ruled that government has the power to forcibly transfer property from one private owner to another in order to promote “economic development,” was one of the most unpopular decisions in the history of the Supreme Court. Polls conducted soon after the decision was issued in 2005 found that over 80% of the public opposed it.
Recent survey data compiled by Stephen Ansolabehere and Nathaniel Persily as part of a general study of public attitudes on constitutional issues sheds new light on public attitudes towards Kelo. The study, which is based on a poll taken in July 2009, finds that the public remains just as strongly opposed to economic development takings as in 2005. But it also indicates considerable public ignorance about the Court’s decision.
Question 215 in the 2009 survey asked respondents the following:
Governments sometimes use the power of eminent domain to acquire a person’s property at a fair market price for other uses. Recently, a local government transferred someone’s property to private developers whose commercial projects could benefit the local economy. Do you think the local government should be able to use eminent domain for this purpose or not?
This wording is quite favorable to the pro-Kelo side. It mentions the rationale for the taking (“benefit [to] the local economy”) and notes that the owners will get a “fair market price.” Respondents who are not experts in this field might believe that the latter actually means a “fair price” that takes account of the full extent of the owners’ losses, even though it only actually means “fair market value,” which is often not enough to fully compensate owners for the loss of “subjective value.” On the other hand, the question doesn’t mention any of the arguments against such takings, such as the strong likelihood that they will destroy more economic value than they create. Nonetheless, 81% of respondents said that government “should not be able” to engage in economic development takings, while only 16% concluded that it should have the power to do so. There was little disagreement between respondents with different partisan commitments or ideologies. This is almost exactly the same result as in the 2005 surveys. It suggests that public opposition to economic development takings is not a temporary artifact of the Kelo backlash, nor is it the product of question wording that favors opponents.
On the other hand, Question 301 in the same survey found that only 42% realized that the Court ruled that economic development takings were permissible, while 14% thought that the Court had ruled the other way and 43% were not sure. These figures likely overstate the true degree of public knowledge of Kelo because some people probably hit on the right answer by guessing without actually knowing it (a random guesser had a 50% chance of getting the right result). Previous research shows that a substantial minority of survey respondents prefer to guess rather than admit ignorance. Individuals who don’t even know which way the Court ruled in Kelo are probably also unlikely to keep track of post-Kelo reforms. As I argued in this article, this kind of public ignorance helps explain why so many of the latter have been ineffective. A 42% rate of correct answers is higher than we would get for most Supreme Court decisions. It also beats the mere 21% who knew (in a 2007 survey) whether their states had enacted post-Kelo reforms, and the mere 13% who both knew that and whether their state’s reforms were likely to be effective. But the 42% figure is still unimpressive for a ruling that drew such widespread press coverage and political opposition.
I do not believe that the strong public opposition to Kelo by itself proves that the case was wrongly decided or even that economic development takings are bad policy. After all, I have repeatedly argued elsewhere that public political attitudes are often the result of ignorance and irrationality. Nonetheless, the depth and persistence of public opposition to economic development takings is interesting, as is the extent to which it is coupled with widespread ignorance about the issue.