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Eduardo Penalver on California Proposition 99 and the Kelo Backlash:

In this interesting post on Prawfsblawg, prominent property scholar Eduardo Penalver argues that California Proposition 99 institutes a useful distinction between homes and other properties by protecting the former, and not the latter against takings:

Prop. 99 would bar governments from taking owner-occupied homes through eminent domain for redevelopment, but permit the taking of other sorts of property (or the taking of owner-occupied homes for other purposes). Prop. 99's focus on residential property makes it (to my knowledge) unique among anti-Kelo legislation and also dovetails with a suggestion I made in an essay I wrote on Kelo a few years ago. Insofar as the backlash against Kelo was rooted in the popular views about the special status of residential property, I argued, it seemed strange to me that the proposed legislative responses have tended to sweep much more broadly, encompassing all privately owned land. It has always seemed to me that property rights groups were trading on the rhetorical and cultural power of homeownerhip in the service of a much more expansive agenda than the public reaction to Kelo merited on its own terms.

One problem with Penalver's defense of Prop 99 is that it doesn't actually provide any real protection even for owner-occupied homes. I documented this point elsewhere (e.g. - here). Penalver himself notes that he would have preferred protection against eminent domain to be extended to "long-term renters as well, and even to certain categories of commercial property."

Penalver is perhaps correct to say that the general public cares much more about protecting homes against takings than about protecting other types of property. He is also right that some libertarians want to use the reaction against Kelo to provide protection for property rights that goes beyond protecting homes.However, both statements need to be qualified.

I. Is Public Opposition to Eminent Domain Limited to the Taking of Homes?

The fact that the public cares more about protecting homes against takings than protecting other property doesn't mean that it is indifferent to the latter. Other than homes, the most common type of property condemned for development purposes is small business property. I suspect that most of the public is only slightly less sympathetic to small businesspeople who lose their commercial property to eminent domain than it is to homeowners who lose their residences. Indeed, survey data compiled in recent articles by Janice Nadler and Shari Diamond (here) and yours truly (here) suggest that public opposition to Kelo is pretty stable in polls using different kinds of wording, regardless of whether the question refers to the taking of homes or not. Some of the surveys cited in Nadler and Diamond's piece show that anywhere from 39 to 53 percent of the public oppose the use of eminent domain against any property for any reason. As the authors caution, these results should not be taken literally. But they do suggest that public opposition to takings isn't narrowly confined to concerns about homes.

II. Have Libertarians Used Kelo to Establish Greater Protection for Property Rights than the Public Wants?

Penalver is right that libertarians would like to see broader protection for property rights than majority public opinion currently supports. However, he exaggerates somewhat when he states that "[y]ou can see this manipulation of Kelo not only in the attempt to protect all private land from redevelopment takings, but also in the tendency of property-rights groups to bundle anti-Kelo initiatives with other elements of the property rights agenda, such as the anti-rent control provision of Prop. 98." The comment about California's Proposition 98 is accurate, but Prop 98 is the exception not the rule. Of the thirteen anti-Kelo referendum initiatives placed on state ballots since 2005 (ten of which passed), only four included regulatory takings or rent control provisions that covered "other elements of the property rights agenda." And two of these, Proposition 98 and Proposition 90 (narrowly defeated in 2006), were sponsored by the same California group. The other nine ballot initiatives (all of which passed overwhelmingly) stuck narrowly to the Kelo issue of forbidding the condemnation of property for transfer to private properties. I discuss these initiatives in detail in my forthcoming article on post-Kelo reform (pp. 35-38).

Penalver is also wrong to assume that state "legislative responses to Kelo" usually protect "all privately owned land." In reality, as I document in detail in this article, the vast majority of the new laws exempt "blighted" land, often under a broad definition of blight that allows the condemnation of almost any property. Many also exclude vacant lots, property that poses a threat to public health, and other categories.

In sum, it is true that libertarians want more protection for property rights than does the majority of the public. We wouldn't be libertarians if we didn't! On the other hand, the public's concerns go beyond a narrow focus on homes. And in many respects, the libertarian view is closer to the general public's position than is the current law in most states, which continues to allow the condemnation of both residential and other property with few or no restrictions. As I document in detail in my paper on post-Kelo reform linked above, the majority of the 42 states that passed reform legislation in the wake of Kelo have enacted laws that pretend to protect property rights without actually doing so to any significant extent. In that respect, Proposition 99, with its fake "protections" for property rights, is far closer to the norm than Proposition 98.

UPDATE: Eduardo Penalver clarifies his position somewhat in the comments here. I agree with much of what he says in his comment, but have two minor disagreements. First, I'm not convinced that a 25% rate of "bundled" post-Kelo referendum initiatives is unusually high - certainly not compared to the amount of bundling that occurs with initiatives on many other issues. Second, Eduardo is incorrect in claiming that Prop 99's focus on residential property is "a unique innovation in the anti-Kelo arena." Wisconsin's post-Kelo reform statute (discussed on pg. 24 of my article on post-Kelo reform) also provides greater protection for homes than it does for other land uses.

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