The Volokh Conspiracy - Property, Popular Mobilization, and Protection for Constitutional Rights:

In a series of interesting posts (e.g. here) on popular mobilization and constitutional law, Jack Balkin argues that the Supreme Court often responds to changing public opinion and political mobilization in formulating its decisions. For example, he suggests that if the Court holds that the Second Amendment protects an individual right, that may in part be the result of strong public opinion supporting such an outcome. I don't doubt that the Court sometimes responds to public opinion in that way. However, property rights is a noteworthy counterexample. As I discuss in this paper on the massive political backlash to Kelo v. City of New London (now under submission to law reviews), most of the public (including even most self-described "liberals" and "Democrats") favor much stronger protection for property rights than the Court has so far been willing to provide.

An alternative route for popular mobilization to strengthen protection for constitutional rights is through its influence on legislative action. As I argue in the paper, Kelo has indeed stimulated an enormous amount of new legislation, including new federal laws and eminent domain reform in 42 states. However, even in a case where the overwhelming majority of the public favors stronger protection for individual rights, structural aspects of the political process largely prevented them from getting their way. As I explain in the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective.....

Thirty-five state legislatures have enacted post-Kelo reform laws. However, twenty-one of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development...

I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. Survey data collected for this Article shows that only 13% of Americans know whether or not their home state has enacted effective post-Kelo eminent domain reform. The political ignorance hypothesis accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.

Popular mobilization undoubtedly plays an important role in protecting constitutional rights favored by public opinion. But such "backlash politics" also has severe limitations that are underappreciated in the current literature on the subject. The Kelo backlash provides an important example of those limits in a case where public opinion was overwhelmingly on one side of the issue, yet still largely failed to get its way.

	[Ilya Somin, March 28, 2008 at 5:58pm] Trackbacks Property, Popular Mobilization, and Protection for Constitutional Rights: In a series of interesting posts (e.g. here) on popular mobilization and constitutional law, Jack Balkin argues that the Supreme Court often responds to changing public opinion and political mobilization in formulating its decisions. For example, he suggests that if the Court holds that the Second Amendment protects an individual right, that may in part be the result of strong public opinion supporting such an outcome. I don't doubt that the Court sometimes responds to public opinion in that way. However, property rights is a noteworthy counterexample. As I discuss in this paper on the massive political backlash to Kelo v. City of New London (now under submission to law reviews), most of the public (including even most self-described "liberals" and "Democrats") favor much stronger protection for property rights than the Court has so far been willing to provide. An alternative route for popular mobilization to strengthen protection for constitutional rights is through its influence on legislative action. As I argue in the paper, Kelo has indeed stimulated an enormous amount of new legislation, including new federal laws and eminent domain reform in 42 states. However, even in a case where the overwhelming majority of the public favors stronger protection for individual rights, structural aspects of the political process largely prevented them from getting their way. As I explain in the abstract: The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective..... Thirty-five state legislatures have enacted post-Kelo reform laws. However, twenty-one of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development... I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. Survey data collected for this Article shows that only 13% of Americans know whether or not their home state has enacted effective post-Kelo eminent domain reform. The political ignorance hypothesis accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures. Popular mobilization undoubtedly plays an important role in protecting constitutional rights favored by public opinion. But such "backlash politics" also has severe limitations that are underappreciated in the current literature on the subject. The Kelo backlash provides an important example of those limits in a case where public opinion was overwhelmingly on one side of the issue, yet still largely failed to get its way.