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.
Huh? I'm not getting it.
I have corrected the mistake you pointed out (an omitted phrase).
Thanks!
IS
As far as I know, there is NO national organization that performs that essential function regarding property rights. There is a $900,000 CEO's salary (using NRA as an example) waiting for the individual who creates such an organization.
Many press accounts attribute the Democrats loss control of congress in 1994 and Gore's loss of the White House in 2000 to a backlash over gun control. Presidential and many congressional candidates have been quite keen to portray themselves as sympathetic to gun owners' and hunters' rights. The Democrats were only able to recapture congress (and the Ohio governorship etc.) in 2006 by fielding candidates largely opposed to gun control and their new congress has done little to overturn 12 years of GOP legislation favoring gun rights. National gun control legislation has largely gone nowhere recently and federal legislation to shut down some lawsuits against gun manufacturers has passed. The NRA is able to raise millions of dollars to oppose gun control and support sympathetic politicians. More importantly is has has millions of members who vote on the issue.
I don't think that the anti-Kelo movement is anywhere near the NRA (or other 2nd amendment supporters) in influence. 70 or 80% of people answering a survey that they favor stronger property rights won't do the job. To emulate the NRA property rights advocates will need to be able to mobilize seven figure number of SINGLE ISSUE voters in election after election for years on end if not decades, defeating countless politicians who do not favor their agenda.
In one sense gun rights advocates had it easy in that their opponents did not really have a serious concentrated financial interest in gun control. In control property developers and their creatures in municipal government and redevelopment agencies owe their livelihood to weak anti-takings property rights. These people have vast financial resources and a strong incentive to spend them to defeat strong anti-takings property rights
Kevin
I certainly agree that the property rights movement isn't as strong as the NRA/gun rights movement. However, it's not just a matter of 80% merely saying they support property rights in surveys. 63% also say that they "strongly" oppose Kelo. If even 10% of those people are willing to switch votes in an election on that issue (over 6% of the total population), that would be a very substantial voting bloc, especially in a close election. Thus, the political ignorance point is necessary to help explain why such a voting bloc has not emerged.
Correct. IJ wins (or loses) the key case and there is no one to grab the ball and run the next 10 yards. Didn't we discuss this in the past month?
But, a big problem, is that property right groups are parochial and insular. Each LITTLE group is easily countered by the business/development interests who are organized and well-funded. The property-right groups must start consolidating in order to have enough clout to start educating the "political ignorance" out of the voters. Otherwise they'll just be another ineffective beer and tears debating society..
Where is the evidence of this? Where are the poll with the question, do you believe that the second amendment guarantees a collective of individual right to bear arms? I bet if that question were asked the vast majority of people wouldn't even know what the hell the point of the question was.
Don't most polls show that the majority of Americans support "reasonable" gun controls (whatever that means). Just because the NRA is an extremely effective lobbying organization, doesn't mean that their stand on gun rights is the predominant ones, it just means they can scare politicians.
I think a larger reason is that although most people back property rights they do not feel personally threatened by eminent domain. Eminent domain is usually targeted to small groups of people in isolated instances. It is very unlikely that my (or your) home/business will ever be targeted for eminent domain, but if you own or want to own a gun any gun regulation passed in your state or city could potentially effect you.
Tens of millions of americans own guns and gun control laws have the potential to affect all gun owners not just a few gun owners. These owners have seen very large groups of people like residents of New York City and Washington DC lose their right to own a functioning gun or their right to legally own/buy a handgun, "assault weapon", etc. There have also been instances of citizens of entire countries losing these rights. Thus the fear of losing a gun to gun control regulation is a fear of an event that is much more likely to happen.
Also, people feel having a gun is essential to their safety. It would often suck to lose your home or business to eminent domain, but it would most likely not be a life threatening event like confronting a burglar without a gun. And it is probably more likely that your home will be burglarized or you will a victim of some form of violence where having a gun would be useful than it is that you will lose your property to eminent domain.
Finally, some gun control regulations would turn otherwise law abiding citizens into criminals. Eminent domain does not have similar consequences since you will not be committing a crime and possibly going to jail if your property is condemned.
These are very emotional, practical, and personal reasons for voters to focus on gun rights that are just not present with property rights.
That's just what I was thinking. Real estate owners have hardly any class consciousness on this issue. The interests in a condemnation action get to organize first, often in secret for some time, and by being able to make the first move or first several moves they have an enormous advantage against the victim class, which doesn't learn of its existence for some time. Until those initial actions become public, a fear of them might as well be a fear of being hit by lightning.
OTOH if you own a gun, you've been aware of the issues in controversy for a long time and are much likelier to have class consciousness. Plus, those issues are better defined, concerning certain physical objects and their characteristics. The issues in restraining eminent domain are much more abstract, and the effects of reforms aren't so easily envisioned.
Perhaps it would be helpful to distinguish between opinions based on a set of given facts, and opinions formed on the basis of erroneous or incomplete facts.
"Do you believe the Second Amendment to the U.S. constitution guarantees the rights of Americans to own guns, or do you believe it only guarantees members of state militias such as National Guard units the right to own guns?"
Result 73% individual rights, 20% militias (7% unsure)
CNN/Opinion Research Corporation Poll. Dec. 6-9, 2007. N=1,002 adults nationwide. MoE ± 3 (for all adults).
"Part of the debate about gun ownership hinges on how we interpret the U.S. constitution. The exact words of the constitution are as follows: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed upon.' Do you think these words guarantee each person the right to own a gun, or do they protect the right of citizens to form a militia without implying that each individual has the right to own a gun?"
..................Right of..................Right of
..................Each Person............Citizens to
..................To Own a Gun.........Form a Militia
..................%............................%
ALL adults...65..........................31
...Men.........72..........................26
...Women....58..........................35
...Urban......50..........................42
...Suburban..64..........................32
...Rural..........73..........................23
NRA is the exception that proves the rule since its political power comes from harnessing 4,000,000 member (and 12,000,000 fellow travelers). But, after closely observing NRA lobbying activities for over twenty years, it is clear that NRA doesn't "buy" politicians in the way business interests do (NRA simply doesn't have the money even if it had the interest).
That's an entirely different question than the one I posed.
Posed the way it is, I am amazed 20% agreed with the latter proposition as it is the narrowest possible "collective rights" interpretation. That position is one I would think is only held by the most hard-core gun-banners.
The whole collective rights interpretation is a fraud. Can you name one gun law that would be struck down by a collective rights interpretation? For that matter, can you name ANY collective right that is enforceable in American jurisprudence?
(3) Any object, building, structure, site, area, place, record, or manuscript which a lead agency determines to be historically significant or significant in the architectural, engineering, scientific, economic, agricultural, educational, social, political, military, or cultural annals of California may be considered to be an historical resource, provided the lead agency's determination is supported by substantial evidence in light of the whole record.
All that is required is that some "lead agency" produce a report that the property is "... significant in the ... annals of California ... " I have seen other cases where EIRs produced by private consultants have been presented in courts to reverse decisions made by local municipalities. That is, where a lead agency determined that the property was not historically significant - and therefore developable - and suit was brought against the municipality to force it to prevent development.
As long as some historians can be paid to research the history of the property and write something about it as private consultants, the property can be protected against development. Why can't these principles be brought to bear on behalf of the property owner, rather than on behalf of government?
Arguing over "significance" would seem to give the property owner much more leverage than arguing economics, because historians are underpaid. A little money will go a long way compared to the money behind developers, and the burden is then placed on the developer to prove that preserving existing structures is infeasible.
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