When the Supreme Court upheld the constitutionality of condemnnations for "economic development" in Kelo v. City of New London, it ignited a firestorm of political outrage greater than any other Supreme Court decision in decades. As I document in Part I of my updated paper on post-Kelo reform, 80-90% of the public disagreed with the decision, as did political leaders and activists from across the political spectrum. Forty-two states and the federal government enacted new legislation intended to curb eminent domain - a greater legislative response than that generated by any other Supreme Court decision in history. However, as Part III of my paper explains, the majority of these laws fail to impose any meaningful constraints on economic development takings, usually allowing them to continue under other names (typically, as "blight" condemnations).
Why have so many post-Kelo reform laws been ineffective? Recent public opinion data that I have collected through the Saint Consulting Group's Saint Index survey support my conjecture that political ignorance plays an important role. In the SCG's 2007 Saint Index survey, conducted last August, only 21% of Americans could correctly answer a question about whether or not their states had enacted post-Kelo eminent domain reform, and only 13% could both correctly answer that question and a follow-up question about whether or not their state's reform law was likely to be effective in curbing economic development takings. Public ignorance about post-Kelo reform - like opposition to Kelo itself - cuts across racial, ethnic, gender, ideological, and partisan lines. Moreover, the figures given above probably overstate the true level of public knowledge about post-Kelo reform; some significant number of respondents probably got the "correct" answers by guessing rather than because they actually knew. The survey data is presented and analyzed in detail on pp. 42-49 of my paper.
If most voters know little or nothing post-Kelo reform in their state or its likely effectiveness, it should be easy for politicians to pass off cosmetic "reforms" as genuine bans on Kelo-style takings. As I explain in the paper, this is a more compelling explanation for the relative paucity of effective reforms than the usual claim that reform has been stymied by developers and other powerful interest groups. In the absence of political ignorance, state legislators would not be able to benefit politically from sacrificing the desires of the vast majority of the public to the needs of small interest groups. After all, some 81% of Americans say they oppose the Kelo decision (63% "strongly"), and 71% say they support state legislation to ban economic development takings (43% "strongly") (see pp. 7-8 of the paper for cites). If even a fraction of those who strongly oppose Kelo were well-informed about post-Kelo reform, they could easily form a voting bloc large enough to outweigh the electoral influence of pro-condemnation interest groups.
The machinations of interest groups are certainly a part of the post-Kelo story. But those machinations would probably have been much less effective in the absence of widespread public ignorance. Ignorance about public policy is generally rational and is not a sign of "stupidity." But that doesn't prevent it from causing serious harm.
UPDATE: I would like to take this opportunity to thank the Saint Consulting Group for allowing me to insert two questions about public knowledge of post-Kelo eminent domain reform into their annual Saint Index survey. Obviously, the SCG is not responsible for conclusions I have drawn from the data they collected.
All Related Posts (on one page) | Some Related Posts:
- Property Rights Three Years after Kelo, Part IV - What the Feds Have Done:
- Property Rights Three Years After Kelo, Part III - A New Cross-Ideological Coalition for Property Rights?
- Property Rights Three Years After Kelo, Part II - The State of the States:...
- Assessing the Economic Impact of Banning Economic Development Takings:
- Political Ignorance and Post-Kelo Eminent Domain Reform:
- "Victims" of Subprime Mortgages and Victims of Eminent Domain:
- The State of Post-Kelo Eminent Domain Reform:
So, anti-ED activists embarked on a litigation/attention-building strategy premised on people's ignorance of existing ED law, designed to spur a groundswell of outrage made possible by people's preexisting ignorance of existing ED law, but the results of the groundswell are foiled by . . . people's general continuing ignorance of ED law.
I agree that voters were ignorant about the Pre-Kelo status quo (and make that point in the paper), but disagree with the implication you draw. If voters had been aware of the Midkiff-Berman status quo, they would have complacently accepted it for so many years before Kelo. They would not have accepted the idea that government can take homes and businesses for "economic development" merely because the Supreme Court had said it could (any more than they did so after Kelo). Kelo partially woke them up to the reality of a terrible status quo that they had been largely unaware of.
What I do think is that decades of people ignoring not only Midkiff and Berman on the books but also the fairly regular condemnations in their own communities were a good sign that ED is just an issue that can't be solved by consciousness-raising and agenda-setting, and that the attempts to make lemonade out of Kelo lemons were probably more or less doomed from the start. I think that conclusion probably supports your position in the recent Judicial Review Wars, so maybe we're largely on the same page.
There is certainly something to the above, and I agree with most of it. However, as i discuss in the paper, some states have passed effective new reform laws in since Kelo, so it would be wrong to say that the backlash was a total failure. Just a much smaller success than many expected.
That is what democracy is all about. Dealing with "interest groups" like liberals, conservatives, socialists, and libertarians, labor and business all with their own "machinations" or, less sinisterly, agendas.
"If even a fraction of those who strongly oppose Kelo were well-informed..." then they would not even think that the decision was that big of a deal.
Those who opposed Kelo so stridently took a decision that fits rather well with a significant line of precedent and made it into the end of the world. This absurd melodrama was made possible by ideological career activists, media hype, and voter ignorance.
But guess what, every day that passes with Kelo still on the books, people forget that they ever cared about it in the first place. Kelo is not Roe v. Wade. =)
You said it first. I should have skimmed the other comments before adding my own.
You are absolutely right:
It is voter ignorance that allowed anti-ED activists to make hay out of Kelo.
That's astoundingly high. I feel small.
Ahh! It's the good fairy pollster. Happens to know what laws are likely to be effective. Hope they get paid xtra.
Are you actually, seriously advancing the idea that absent Kelo, the Great Unwashed would find nothing wrong with having family homes bulldozed to the ground without full compensation, and the razed homesites turned over as freebies to large-scale developers, mass merchandizers, giant manufacturers etc. in order to enhance those worthies' already handsome profits? Sheesh!
Then again, who was that Great American thinker who said: "Nobody ever went broke underestimating the intelligence of the American public"? Give that man a posthumous cigar.
What was the name of this form of government again?
I think that if voters knew the facts, they would not be so worried about Kelo.
Out with the old and obsolete. In with the new and innovative. That optimistic view is fundamental to American character, not a pessimistic view that thinks it is impossible to replace anything torn down with something better.
If voters realized the Kelo was but a small step in our existing system, they would not be easily alarmed.
In fact, most people are not in fact alarmed about Kelo, even those who say they strongly oppose it are likely simply parroting the views of career activists whose fake and well-timed wails of despair are magnified by a complicit media.
Of course, this is hilariously inaccurate spin, since Kelo had nothing to do with "obsolete" vs. "innovative" or "optimism" vs. "pessimism." It had to do with freedom vs. government, the notion that we exist solely to provide funds to government and thus anything that leads to more funds for government is good for the public. Nobody except economists oppose Kelo-style takings on any grounds related to "pessimism." People oppose Kelo because they don't want their homes taken by the government and given to politically connected people who have more money than them.
With such a large fraction of Americans getting those questions wrong, I wonder whether there's are particular questions that those people thought were being asked, and that they then answered correctly. And if so, what are they?
So if we are going to discount the public's lax attitude towards post-Kelo reform on the ground that they are ignorant, perhaps we also should also discount the public's negative reaction to Kelo. Why should we give much weight to the fact that 80-90% of such an ignorant public thought the opinion was wrongly decided after most only heard a snippet summary of the case?
I suspect that the many, if not most, of the public were satisfied with the legal status quo prior to Kelo, and were simply misinformed into thinking that Kelo had dramatically changed the status quo. If this is so, then it makes sense that such a public would be satisfied with legislative "fixes" that do little of substance, but that appear to fix the Kelo problem. This doesn't make Kelo right or wrong, but it might help to explain the public opinion angle.
No, ordinary people intelligently do understand their own interests as well as they reasonably can, and they're rationally only minimally interested in eminent domain because most voters are only negatively affected by it, if at all, through fairly muted downstream effects from inefficient transactions, or a via few extra drops in their already very full tax bucket. This is especially true when the ED regimes focus on "blight."
...if the voters knew the facts...
Interesting thought. So shall we tell them about TIF bonds, how they are issued off-budget and sold without the voters' approval, and how those cherished incremental taxes from redevelopment areas (assuming they materialize) have to be diverted from paying for municipal services into servicing the bonded indebtedness and eventually paying off the principal, while high income individuals clip the tax-free coupons? Would you like to make sure that the voters know, for example, that in California where I happen to live, redevelopment bonded indebtedness has gone from $5 billion in 1985 to $61 billion in 2004. And counting.
And who benefits from all that? Wanna take a guess?
Yes indeed, if the voters only knew.
I highly doubt that people would have accepted Kelo if only they knoew about Midkiff and Berman. The facts of Berman in particular are vastly MORE shocking than those of Kelo. In Berman, some 3000 politically powerless poor African-Americans in DC were forcibly displaced for the benefit of more affluent white interest groups. If the average American today were aware that Kelo rested in part on the legitimacy of such a precedent, I doubt they would take a more favorable view of Kelo than they now do.
I have never suggested that Kelo is wrong merely because 80% of the public disagrees with it. The 80% figure is important because it presents an empirical puzzle: Why has much post-Kelo reform been so weak despite such strong public support for stronger measures? the political ignorance hypothesis provides at least a partial answer to that puzzle.
Contrast this with public sentiment on, for example, illegal immigration, where the sentiment against it is probably actually slightly narrower than anti-Kelo hostility, but exponentially deeper. I don't advance that as an issue where "the people" were "right" (that's not relevant to my point here), but only as an example of an issue where public opinion has forced legislators into line. This contrasts with the notion that some have advanced in this thread, and others, that laws are in fact only enacted by splinter factions or other small minority groups. The public can put pressure on the legislature, even the federal legislature, if it cares enough. What I see here is an online gathering of people resentful of the fact that not enough people did care, or do care, about this issue with the same passion that they do about illegal immigration or other issues where grassroots pressure has forced legislatures to change course.
Kevin
The data suggests that the issue is in fact salient for a large number of voters. Consider the many who say that they feel "strongly" about it. Publicity, however, will not overcome ignorance if voters rationally choose not to pay attention to the details (many of which are quite complicated) they need to know to voter effectively.
People may say they are outraged by Kelo and the idea of giving land and tax breaks away to developers, but they rarely actually mean it. When WalMart comes to town, most people will be more than willing to give them whatever they want just to save a few cents on tube socks, even if it means forcibly evicting Mrs. Johnson from the house she was born in. All WalMart has to do is throw a few uniforms at the little league team and suddenly they are the savior of the community.
Why is ownership of real estate allegedly sacrosanct under Amendment V, while personal property is subject to various forfeiture laws that may apply based on third party activities at a property?
Why do people keep talking about "houses we were born in" when the more common eminent domain conflict is between small volume commercial interests (who realistically can continue their small volume activities at other locations) and large site developers, who by definition need large sites?
Why was Midkiff/Berman normatively a "bad" thing for the average consumer?
Shouldn't 50% get it right just by chance? I guess, if about 80% of the states have passed relevant laws, and the answers were completely random (i.e., half said yes half said no) about 20% would be right. Is that what happened?
I'm sure "I don't know" was an option and included in the 79% of the people who didn't answer "correctly". Although technically, "I don't know" is a correct answer and, I would argue, in some cases the only correct answer, since it is questionable whether some of the laws passed are actually "reform" at all.
Your second point is also confusing. Are you suggesting it is okay taking "the home we grow up in", because most of the time takings don't take "the home we grow up in"? And anyways, all takings are undercompensated- otherwise the owner would have voluntarily sold at fair market value in the first place. And I don't know how you claim it is realistic for "small volume commercial interests" (otherwise known as small business owners I guess) to pick up and move. You're making an assumption there that will not be true in many instances- a businesses' viability frequently relies on its location.
And the third question is easy- because normatively it is wrong to take peoples stuff without their consent. And current eminent domain law doesn't even ensure an economically efficient outcome- so you can't even be certain the taking was for the greater good.
After a quick google search for "texas kelo reform" that returned the Volokh conspiracy and other sites about Ilya's postings, my guess was right. So if someone like me who cares about this issue and reads this site most days does not know for sure, how likely is it for the average voter to know. And how is this supposed to affect my voting?
Berman was wrong for two reasons. First, it was avowedly racist. It displaced a large, poor, African-American population without any compensation whatever and without any relocation benefits. It gave rise to the expression "Urban renewal is Negro removal." Also, it was a fraud. The enabling legislation required that the rebuilt Southwest DC contain at least 1/3 low cost housing renting for $17/room/month. But nothing of the sort happened. If you haven't done so, next time you are in DC go over there, have a nice seafood meal on the waterfront, and check it out for yourself.
Midkiff was wrong because, first of all, there was no "oligopoly" on Oahu -- the market in fee simple land consisted of over 70 active participants. My old Econ 101 professor would never call that an "oligopoly." I suggest you read the whole story in Debra Pogrund Stark, How Do You Solve a Problem Like in Kelo? 40 John Marshall L. Rev. 609, particularly the part at 624-630 (2007).
The Midkiff statute applied only to leased redidential single-family homes, so the large-scale Hawaiian landholdings (the "oligarchic wealth") put to commercial and agricutural uses went untouched. One major reason why there wasn't more buildable residential land available is that about half of Oahu is government-owned and Hawaiian land regulations are notoriously restrictive when it comes to building new housing.
Also, there was a massive misrepresentation of the nature of the lessor (Bishop Estate) as an oppressive landlord. In fact it charged below-market land rents and used the income to support the Kamehameha schools which provide quality education to poor Hawaiian children. The misinformation (disinformation?) about that case was so great that I have actually seen law review articles asserting that the Midkiff case involved redistribution of land to "peasant farmers" who already worked that land. In fact, the primary beneficiaries were rich and affluent haole suburbanites living in places like Kahala and Hawaii Kai -- some of the poshest areas on Oahu. Finally, the law of unintended consequences struck. Before Midkiff, Japanese investors shunned leaseholds because their culture preferred very long term investments, which made leaseholds unattractive. But once those upscale suburban homes became available with fee simple titles, what folloowed was a Japanese land rush in which investors snapped up suburban homes for seven-figure prices, tore them down, built new luxurious homes and marketed those as vacation homes to Japanese executives back home. The champion was a fellow named Genshiro Kawamoto who bought some 100 East Oahu homes from the back seat of his limo. The upshot was that instead of home prices being reduced (a nonsensical but nevertheless formally stated rationale for the Midkiff legislation), home prices on Oahu zoomed upward by almost 100% in the next few years. Great deal for the "Kahala refugees" ho sold their homes to the Japanese at inflated prices, replaced them with better ones, and then enjoyed the next chapter in the boom in Oahu home prices. Also, not bad for those who already owned homes, but an economic disaster for others.
That's what's wrong with Berman and Midkiff.
Adam J: My first two questions were perhaps rhetorical. On 1, I see lots of hand-wringing about Kelo and comparatively little about criminal forfeiture laws. On 2, I do think that the homeowner vs. developer scenario is overblown in order to gin up support for the anti-Kelo crowd. And on your response to 3, it's clear that Amendment V allows takings without consent.
I recently attended an academic symposium on property/eminent domain in which one of the speakers was a justice of a state supreme court. After taking in some of the academic stuff, he observed how strange it was -- he came expecting law professors to talk about the law, its philosophy and theory, and all they talked about was case results. You are playing the inverse of that game. You ask how were these cases bad for the consumer (results), I tell you how, so you say that want the status of the law. Gimme a break. If you want that, please read my article in 38 Urban Lawyer 201, particularly at 202, 208-212 and 222-224. Enjoy.
Real property, the same as personal property IS subject to forfeiture laws.
As for the supposed ready transferability of small businesses to other locations, that is often a myth notwithstanding that judges intone it without any evidence that iit is so. Past studies indicate that of individually owned, one-location businesses, 50 to 80% do not reopen after displacement by eminent domain, and of those that do, many suffer decreased income. This is particularly true in takings for redevelopments and urban hihjways where the taking not only destroys the business but also by taking an entire neighborhood scatters its clientele. So even a successful relocation is really like startinga a new business all over again. Plus, by the time the proprietor of a small business gains significant experience and builds up valuable goodwill/going concern value, he or she is middle-aged or old and often in no position to start a new business from scratch.