Social conservatives have, with some justification, long warned of the dangers of single-parenthood among the poor, which often leads to poor outcomes for children. However, some of those same social conservatives are also staunch supporters of the War on Drugs. Unfortunately, as Kerry Howley points out in a recent LA Times debate with Kay Hymowitz, the War on Drugs is a major contributor to the prevalence of fatherless children in poor black communities:

[C]hildren tend to do better when they're raised by two biological parents, along a variety of dimensions and controlling for all sorts of factors. It was always a mistake to deny that fact in the service of some larger political crusade.

Still, I'm not sure where blindly repeating "two parents are ideal" gets us. I have yet to meet a single mother who doesn't want help. The low-income single women in "Promises I Can Keep," the study of poor mothers I referenced during our pregnancy pact discussion, hope upon hope for a worthy partner to come along....

For low-income black women, the world really isn't cooperating. We put an awful lot of nonviolent black men behind bars, which is not generally conducive to good fathering. With so many young men absent, the marriage markets are heavily skewed against women, and mothers who might otherwise demand that men stay home and change diapers find themselves in a miserable bargaining position. In his book "The Logic of Life," Tim Harford describes one study indicating that "a one-percentage- point increase in the proportion of young black men in prison reduces the proportion of young black women who have ever been married by three percentage points." Now consider: In New Mexico, 30% of black men between 30 and 35 are in prison. Telling women to want marriage more just doesn't seem like an effective strategy here. Nor does it seem right to suggest that they ought not to have children at all; these women are simply responding rationally to the world as it is.

As I have noted in the past (here and here), some 55% of US federal prison inmates and 21% of state inmates are non-violent drug offenders. And over 62% of incarcerated nonviolent drug offenders are black(most of them poor black males). I don't claim that this racial disparity in drug incarceration is caused solely - or even primarily - by racial prejudice. But even if undertaken for the best of motives, it drastically reduces the available pool of marriageable men in poor black communities. And, as Kerry notes, those men who remain have far less incentive to marry because their stronger bargaining position caused by scarcity makes it easier for them to obtain sex without making any longterm commitment to the women they do it with. Even after drug offenders are released from prison, they are likely to be worse marriage prospects than before, if only because it's hard to get a steady job after being in prison for several years.

Some conservatives might argue that the kinds of men who get arrested for drug possession or dealing wouldn't make good husbands even if they stay out of prison. Perhaps that is true in some cases. But these men still probably beat the alternative of single parenthood. Moreover, Kerry's point about bargaining position is crucial here. If fewer men from these communities were in prison, there would be more competition between them in the dating market and thus stronger incentives for them to behave in ways that appeal to women. To the extent that women prefer men who don't get high to those who do, that might well include staying off the drugs - as well as becoming better providers and fathers in other ways.

UPDATE: Some commenters question the implicit assumptions of Kerry's and my bargaining position point: that many men would like to gain access to sex without making a longterm commitment, while most women prefer men who are willing to make such commitments. All I can say is that both points are backed by extensive social science evidence - far too much to summarize here. Promises I Can Keep, the book cited by Kerry, is among the studies that shows that most low-income women prefer men who will be good longterm providers. John Marshall Townsend's book What Women Want, What Men Want, provides further extensive evidence on both male and female preferences on these points. And Tim Harford's book, also cited by Kerry, provides evidence showing that marriage rates do indeed decline in communities where more men are imprisoned, suggesting that men and women respond to incentives in the way the post posits.

The point is not that men are less "moral" than women. Rather, the two sexes are responding to different incentives. Men can gain a reproductive advantage from casual sex without commitment because one man can impregnate a large number of women. Women, for obvious reasons, can't do this (because the number of pregnancies they can have is relatively fixed, regardless of how much casual sex they have). Therefore, men, on average, have a stronger interest in casual sex without commitment than women do. At the same time, they are willing to restrain such behavior and make longterm commitments if women are in a strong enough bargaining position to insist that they do so. None of these points apply to all men and all women all the time. But they do identify important general tendencies.

Reason magazine has an interesting symposium on DC v. Heller, featuring several leading experts on gun rights including my GMU colleague Joyce Malcolm and the VC's own David Kopel and Randy Barnett. Significantly, most of the symposium participants agree that the true impact of Heller will largely be determined in follow-up litigation that will decide the scope of the individual right to bear arms declared by the Court. As I explained in this post, a narrowly defined constitutional right may not be much different from no right at all.

Election law scholar Rick Pildes has two excellent posts explaining why the "Millionaires Amendment," which the Supreme Court struck down on Thursday was probably enacted by Congress for the purpose of protecting incumbent legislators against challengers (see here and here). As Pildes explains, laws restricting the ability of independently wealthy candidates to spend their own money on their campaigns benefits incumbents because they usually have much better access to other sources of funding than challengers do. Thus, even independently wealthy incumbents rarely need to spend their own money on reelection campaigns. By contrast, thanks to the existence of laws restricting the amounts which people can contribute to the campaigns of others, independently wealthy challengers spending their own money are "[e]very incumbent's nightmare" because they can spend a lot more than challengers who must rely on difficult-to-raise outside contributions. Pildes compiles some impressive evidence (including statements by John McCain) indicating that Congress inserted the Millionaires Amendment into the McCain-Feingold Act for the specific purpose of reducing the risk of their own defeat.

I. Legislators' Incentives to Enact Incumbent-Protection Laws.

However, Pildes seems to believe that the Millionaires Amendment is at least somewhat exceptional, and that many if not most other campaign finance laws might promote political competition rather than undermining it. I find that conclusion implausible. After all, campaign finance laws can only be enacted if they have the support of incumbent legislators. And incumbents have very strong incentives to support "reforms" that entrench them against potential challengers and oppose any reforms that might make the challengers' task easier. Even if - in the abstract - it is possible to design a system of campaign finance regulation that creates a better electoral process than that which would exist in the absence of regulation, it is highly unlikely that real-world legislators would vote for such a system. Instead, they are likely to support reforms that entrench incumbents and oppose any that might have the opposite effect.

Allowing incumbent legislators to write campaign finance laws is somewhat like appointing a committee of wolves to develop new security arrangements for chicken coops. Even if the current security system is flawed, the wolves will probably make it worse rather than better. After all, the wolves' main interest is ensuring their own ability to gobble up the chickens, a goal that would be frustrated by the installation of better security measures.

II. How Political Ignorance Exacerbates the Problem.

Pildes might argue that this danger can be defused by attentive voters. If voters pay close attention to the details of campaign finance laws and punish those legislators who vote for incumbent-entrenching proposals, Congress might have an incentive to promote "good" reform laws and abjure policies like the Millionaires' Amendment. Unfortunately, we know that most citizens have little or no knowledge of politics and public policy and that it is actually rational for them to remain ignorant. It is highly unlikely that any but a tiny fraction of Americans have the kind of detailed knowledge of campaign finance law necessary to be able to tell the difference between potentially beneficial reforms and incumbent-protection scams. Thus, it should be easy for incumbents to dress up laws that handicap challengers as public-spirited efforts to "take money out of politics." The "Millionaires' Amendment" itself is probably an example of this. After all, it looks superficially like an attempt to diminish the political influence of the wealthy for the benefit of the poor and middle class, and was sold that way to the public.

If voters were knowledgeable enough to tell the difference between "good" campaign finance laws and Trojan horses that benefit incumbents, there would probably be no need to worry about campaign finance in the first place. After all, a knowledgeable and attentive electorate could easily learn about the candidates and their policies from sources other than the candidates' 30 second sound bites and ads. For example, they could read newspaper reports, academic studies on the merits of opposing policy proposals, magazine articles, and so on. Campaign finance only matters because most voters are ignorant, and don't pay much attention to politics - thereby turning campaign ads into important sources of information because they are among the few such sources that many voters will actually see. But that very ignorance makes it highly unlikely that voters will know enough to punish politicians who enact incumbent-protecting campaign finance reforms.

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a "collective right" protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn't enough. If the scope of the right is defined narrowly by courts, recognition won't mean much in practice. The history of constitutional property rights is instructive in this regard.

I. Recognizing Property Rights Without Actually Protecting Them.

Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment's Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. For example, the Court has always held - as it reaffirmed in Kelo v. City of New London - that property cannot be condemned unless the taking is for a "public use." Purely "private" takings are - and always have been - forbidden by the Court. However, the Court defines "public use" to include virtually any conceivable benefit to the public, even ones that might never actually materialize. As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.

Similarly, the Court has long recognized that some regulations of property that don't involve physical occupation of land by the government might might still be onerous enough to be considered "takings" requiring "just compensation" under the Fifth Amendment. However, in cases such as Lucas v. South Carolina Coastal Commission and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court decided that such regulations are only presumptively considered takings if they permanently wipe out 100% of the economic value of the property in question. If a regulation wipes out 98% of the value permanently, or %100 of the value for a period of twenty years, the property owner is probably out of luck. In practice, government officials can almost always draft regulations in such a way that their impact is not quite permanent and/or allows the owner to retain some tiny percentage of his land's value. Thus, property owners have little or no real protection against regulatory takings - despite the Supreme Court's recognition of an individual right.

II. Implications for Gun Rights.

It is easy to see how this point applies to gun rights. Although Justice Scalia's majority opinion in Heller firmly establishes the Court's recognition of an individual right to bear arms, it also lists a large number of "presumptively valid" firearms regulations, including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The opinion also recognizes the validity of "the historical tradition of prohibiting the carrying of "'dangerous and unusual weapons.'" Many of these exceptions to the right to bear arms could potentially be used to swallow up the rule. Most obviously, "laws imposing conditions and qualifications on the commercial sale of arms" could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. For example, Justice Scalia emphasizes that the right to bear arms is historically rooted in the right to self-defense. State and local governments could potentially enact laws requiring would-be gun purchasers to provide extensive and specific evidence that they really do need a firearm for self-defense before allowing them to purchase guns. Larry Solum notes that Scalia's opinion also might allow prohibitively burdensome registration requirements:

Because of a concession made in oral argument, the Court's Opinion in Heller did not address the [constitutionality of DC's] licensing and registration requirements. It seems likely that simple registration requirements will survive Heller, but one obvious countermove to Heller would be to establish burdensome registration and licensing procedures. Whether such provisions would survive Heller is uncertain. One can imagine lower court judges upholding very burdensome requirements, or striking them down. Heller surely implies that extremely burdensome registration or licensing procedures would be struck down, but one can imagine a level of burden that would in practice discourage gun ownership but that might survive post-Heller scrutiny.

As my colleague and prominent Second Amendment scholar Nelson Lund points out, several of Scalia's other exceptions might also be problematic:

Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in “sensitive places” like schools and government buildings; restrictions on the commercial sale of firearms; and bans on “dangerous and unusual” weapons, apparently including short-barreled shotguns and machine guns.

Some of the examples are problematic.

Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading?

On what basis will courts decide whether particular places are sufficiently “sensitive” to justify disarming citizens who go there? Did New Orleans become a “sensitive” place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals?

Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become “dangerous and unusual” just because Congress decided to restrict them in 1934?

Scalia himself may not intend these parts of his opinion to be interpreted so broadly. But what counts is not his personal intent but the interpretation placed on his language by lower court judges, and ultimately by swing voter justices in future Supreme Court cases clarifying Heller. The property rights experience suggests that it may be very difficult to convert judicial recognition of a constitutional right into meaningful protection for people in the real world.

Indeed, Justice Scalia's similarly ambiguous opinion in the crucial 1992 Lucas regulatory takings case has over time been rendered ineffective because swing vote justices interpreted it narrowly in the 2002 Tahoe-Sierra case (both briefly discussed above), which held that even a regulation that wipes out all the value of property for years is not presumptively considered a taking so long as it doesn't wipe it out permanently. Scalia voted with the dissenters in that case. But the court's decision turned on the views of swing voters Anthony Kennedy and Sandra Day O'Connor.

In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.

Like most of the other VC members, I am happy that the Supreme Court has ruled in today's Heller decision that the Second Amendment protects an individual right to bear arms. However, there are many parallels between this victory and the recent experience with the Supreme Court's property rights jurisprudence that suggest this victory might not be as effective as many hope.

Over the last 20 years, both property rights and gun rights advocates have sought to get the courts to protect a largely moribund constitutional right. From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring "fair market value" compensation for complete physical occupation of property by the government. During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment's requirement that property can only be taken for a "public use"), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a "taking" that requires "just compensation" under the Takings Clause. One can tell a similar story about the federal courts' approach to the Second Amendment during the same period.

Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways. Even Kelo v. City of New London was an improvement over previous precedents. However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a "poor relation" among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part - as far as the Supreme Court is concerned - it is still the case that government can condemn property for virtually any reason, and still true that property owners can't get compensation for all but a few of the most extreme "regulatory takings." The reasons for this outcome are instructive, as they apply with equal force to gun rights. In both cases, protections for the rights in question are weakened by and ideological divisions on the Court and narrow definitions of the right in question. This post addresses the issue of ideological division on the Court. I'll consider the importance of the scope of the right in question in a follow-up post.

I. The Ideological Split Over Property Rights on the Court.

With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court's liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects.

First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. For example, Justice Anthony Kennedy voted with the liberal justices in Kelo and several other important property rights cases, leading to important setbacks for property supporters.

Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. Any time the opposing party captures the presidency, there is a high likelihood that new justices will be appointed to the Court who will vote to undermine protections for that right. For example, President Bill Clinton's appointees - Stephen Breyer and Ruth Bader Ginsburg - have consistently voted against property rights since joining the Court. Even if there were a stable pro-property rights majority on the Court today, it would likely be undercut in the future any time a Democratic president gets some Supreme Court appointments.

II. Implications for Gun Rights.

Obviously, both points are extremely relevant to gun rights. In Heller, the four liberal justices made clear their strong opposition to any meaningful protection for individual rights under the Second Amendment. Thus, at least in the short term, protection for gun rights is dependent on the five conservative justices sticking together. As in the case of property rights, Justice Kennedy may turn out to be a crucial swing voter, and it is far from certain that he is willing to uphold gun rights against any but the most extreme infringements on them.

As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices' opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. If Obama (or any other Democrat) becomes president, he will likely appoint justices who share these views. Even if Obama does not make this issue a major priority in his nomination decisions, the fact that he will want to nominate justices who are liberal on other constitutional issues will ensure a strong likelihood that they would also embrace the dominant liberal position on this issue. This happened in the case of property rights as well. Opposition to property rights was probably not a major factor in Clinton's choice of Ginsburg and Breyer. Indeed, Clinton was among those who later vehemently denounced the Kelo decision. Nonetheless, these two justices turned out be property rights opponents (even in Kelo) precisely because Clinton did make a priority of appointing judges who are generally liberal, and such judges are likely to be anti-property rights.

In both cases, the relevant group is liberal jurists, not necessarily liberals in the general population. While many liberal activists outside the Court are sympathetic to property rights (as was certainly evident in their reactions to Kelo), this has had little effect on the attitudes of liberal judges. Similarly, there are prominent liberal scholars such as Sanford Levinson and Akhil Amar who support the individual rights view of the Second Amendment, and a good many liberals in the general population who feel the same way. Their views have so far had little effect on liberal judges.

Megan McArdle has an interesting post on how to get women interested in science fiction. Some of her suggestions seem plausible. For example, she notes that the closely related fantasy genre is more popular with women than SF (although even fantasy probably has fewer female fans than male ones). However, overall I'm somewhat skeptical. Casual empiricism suggests that most people with a strong interest in science fiction or fantasy literature developed that interest very as children or teenagers. I think it's very difficult to persuade an adult to take an interest in these genres if they never had previously.

Somewhat surprisingly, Megan doesn't mention the most common explanation for the relative paucity of female SF fans: that the genre is mysogynistic and/or lacks strong, well-rounded female characters. Although this conventional view probably had some accuracy forty or fifty years ago, I doubt that it accounts for the gender gap in SF today. Over the last several decades, many left-wing and libertarian writers have entered the SF and fantasy fields, portraying women very differently than in the early days of the genre. And even those early days weren't quite as completely sexist as some think. Say what you will about Robert Heinlein's Starship Troopers, which has plenty of flaws; but it did portray women serving in combat units on an equal basis with men back in the 1950s. Today, there are even quite a few prominent explicitly feminist SF and fantasy writers, such as Marion Zimmer Bradley, Octavia Butler, and Ursula LeGuin.

Even more fundamentally, the sci fi genre - like other genres - responds to market incentives. If there were a large unment demand for feminist SF or other types of science fiction that may be of special interest to women, publishers and writers would have a strong incentive to meet it. The portrayal of women in science fiction has been debated for at least forty years, and publishers are certainly aware of the issue, and would act on it if they smelled profit. The underlying reality, I think, is that SF has less appeal to women than to men independently of the ideology of the writers and the way they portray female characters.

That said, recent data suggest that the gender imbalance in SF fandom may be overstated. This 2001 National Science Foundation surveyshows that 31% of men say they read science fiction books or magazines - a number statistically indistinguishable from the 28% of women who claim to do so.

The NSF's results are so contrary to conventional wisdom that I wonder if there's something wrong with the methodology. The most obvious potential flaw is that many of the women say they read SF only do so on rare occasions and aren't real fans of the genre, whereas the men read more often. However, the NSF did a follow-up question in which 17% of female SF readers say they do so "regularly" compared to 16% of the male ones. The NSF data do still suggest that SF has greater appeal to men than to women. Other studies reveal that women generally read far more than men do, especially in most fiction genres. So if men and women read SF at roughly equal rates, that suggests that the genre is of greater interest to men once you control for their generally lower propensity to read. The same is true of fantasy. Even the wildly popular Harry Potter series, which successfully reached beyond traditional genre readers, apparently has more male readers than female ones.

Even so, I remain skeptical about the NSF data. I wonder if the study simply suffers from random error (i.e. - even a methodologically sound poll will sometimes get an unrepresentative sample just by random chance). Are there more recent surveys that confirm the NSF result or reach different conclusions? Alternatively, if you are a survey research expert, can you point out methodological errors in the survey that I have missed?

UPDATE: Various commenters point out that women in Heinlein's Starship Troopers can serve in some types of combat units (e.g. - piloting starships), but not others (e.g. - not in the infantry). Fair enough, I had forgotten this detail. However, the idea that women should serve in any combat units was well in advance of mainstream opinion in 1959, when the book was published. For that matter, the US military does not allow women to serve in the infantry even today. The main point still stands: Heinlein was not entirely free of sexism (far from it, in fact). But he was more egalitarian than the conventional wisdom of his time.

My earlier posts on eminent domain reform since Kelo omitted reference to the federal government's reform efforts. In this post, I'm going to rectify that unfair omission. So here's a summary of the federal government's post-Kelo reform successes:

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[Insert sound of crickets chirping, grass growing, and paint drying].

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The above is a comprehensive summary of federal post-Kelo efforts because the feds have accomplished nothing of any no. On the first anniversary of Kelo, President Bush issued a completely ineffective executive order that seems to have been meant just for show. In 2005, Congress passed the Bond amendment, an almost equally futile gesture that has since expired (described on pp. 41-42 of this article). And that's it.

Such federal neglect of the issue is unfortunate. As I explained in a recent National Review article, there is actually a great deal that the president and Congress can do to curb harmful blight and economic development takings. Many blight and economic development condemnations are at least partially funded with federal grants; and some might not have been undertaken without them. Even if you believe that respect for state autonomy should prevent Congress from simply banning such takings, the federal government surely has the power to deny federal to funds to localities that use them.

The Property Rights Protection Act (discussed on pp. 38-41 of my forthcoming article on post-Kelo reform), which would have taken a step in that direction, passed the House of Representatives overwhelmingly in 2005. It would have denied federal "economic development" funds to local governments that undertake economic development takings similar to that upheld in Kelo. But the PRPA was bottled up in the Senate under the Republican Congress. Efforts to resuscitate it in the new Democratic Congress have so far been even less successful. Recently, a new and somewhat better version of the PRPA has been introduced by Republican Representative John Sullivan. Whether Sullivan's effort meets with greater success than previous attempts remains to be seen. As a general rule, it's rare for any important measure to pass the House if it is introduced by a member of the minority party.

One of the most important aspects of the backlash against Kelo was the extent to which the decision was condemned by many on the political left. Conservatives and libertarians have traditionally defended property rights. By contrast, liberals have tended to view them as a subterfuge by which the rich evade government regulations that will supposedly benefit the poor. Yet many liberals and leftists were extremely upset by Kelo. Among those who harshly criticized the decision and "economic development" takings were Ralph Nader, NAACP, the Southern Christian Leadership Conference, Howard Dean, Bill Clinton, and a host of others.. Among the general public, surveys showed that liberals and Democrats opposed Kelo just as overwhelmingly as conservatives and Democrats (see pp. 6-10 of this article). Significantly, many of the liberal critics of Kelo, including the NAACP, AARP and SCLC in their amicus brief, called for a categorical ban on economic development takings, not merely a tightening of standards for such takings. Liberal opposition to economic development takings stems in part from the realization that blight and economic development takings often victimize the poor and ethnic minorities for the benefit of political powerful interest groups. Kelo therefore created an important opportunity to forge a broad-based coalition in favor of stronger protection for property rights against takings. For the first time since the New Deal, many on the left were aligned with liberatarians on conservatives on a key property rights issue.

To some extent, that coalition has borne fruit in the form of post-Kelo legislative reform in the states (discussed in my last post in this series). State supreme courts in generally liberal states such as Illinois, Michigan, and Washington have invalidated economic development takings under their state constitutions and shown far greater willingness to protect constitutional property rights than their fellow liberals on the US Supreme Court (all four of whom voted with the Kelo majority).

However, I fear that not enough has been done to exploit coalition opportunity presented by Kelo. On the liberal side, those activists and organizations who criticized Kelo have, for the most part, failed to make protection of property rights for the poor a routine element of their agenda. Few of them have pursued other property rights litigation or engaged in lobbying on post-Kelo reform issues. They have criticized Kelo and occasionally filed amicus briefs; but there needs to be more action to match the admirable talk. On the conservative-libertarian side, not enough has been done to reach out to potential liberal allies. Occasionally, as in the case of California Propositions 90 and 98, conservative property rights activists have actively alienated liberals by bundling anti-Kelo measures protections with other agenda items that potential liberal allies were bound to oppose. Both sides of the potential anti-Kelo coalition need to do more to make it happen.

Napoleon once said that he preferred to have allies for enemies, because an alliance has greater coordination problems than a unitary adversary. His point probably applies to political coalitions as much as military ones. Nonetheless, the benefits of building a broad anti-Kelo coalition are worth the cost. American history shows that constitutional limits on government power are rarely secure unless they have substantial support on both sides of the political spectrum. Judicial enforcement of free speech rights, for example, did not become effective until it was accepted by many conservatives, as well as the liberals who initially championed it. For all its flaws, the unwieldy Sixth Coalition eventually defeated Napoleon and packed him off to St. Helena. If we play our cards right, perhaps Kelo will suffer a similar fate.

Since Kelo was decided exactly three years ago, a remarkable 42 states have enacted new eminent domain reform laws - a more extensive legislative response than that generated by any other Supreme Court decision. By my count, at least five state supreme courts have issued decisions limiting takings under their state constitutions, including two (Ohio and Oklahoma) which held that Kelo-style "economic development" condemnations are forbidden under their state public use clauses.

How much real progress has been made in protecting property rights in the states? Not nearly as much as many people hoped, but a lot more than probably would have occurred without Kelo.

I. State Legislation.

I have discussed state post-Kelo legislation in great detail in this article. The article covers all state post-Kelo reforms, except for California's recently passed Proposition 99, which I criticized here, and in several entries in this series of posts.

To briefly summarize my findings, 35 state legislatures have passed eminent domain reform laws since Kelo, and eleven states (including California's Prop 99) have enacted such reforms by referendum (a few states have done both). However, 21 of the 35 laws enacted by state legislatures only pretend to limit takings and don't impose any real restrictions Kelo-like condemnations. The same is true of four of the 11 reforms enacted by referendum. The most common subterfuge is to ban takings for "economic development" but allow them to continue under another name as "blight" condemnations, utilizing a definition of "blight" broad enough to cover virtually any property.

Moreover, many of the states that have enacted effective reforms are ones that rarely or never engaged in economic development takings anyway. For example, the state of South Dakota has enacted one of the strongest post-Kelo laws in the entire country. But in the years preceding Kelo, South Dakota did not initiate even one blight or "economic development" taking. By contrast, many of the states with the worst records on property rights have enacted ineffective legislation or none at all. These states include California, New York, New Jersey, and Texas. For reasons I advance in the article, the most compelling explanation for this pattern is that most voters lack the knowledge necessary to tell the difference between effective reforms and purely symbolic ones. Survey evidence shows that no more than 13% of Americans both know whether their state has enacted eminent domain reforms since Kelo, and know whether those reforms are likely to be effective or not.

That said, a number of states with extensive records of eminent domain abuse have enacted strong reform laws, with Florida (which adopted the strongest reform in the entire country) and Indiana being the best examples. Moreover, as I explain in the paper, reforms enacted by citizen-initiated referendum initiatives have generally proven far stronger than those enacted by state legislatures (though Proposition 99 - drafted by pro-condemnation interest groups, is an important exception). Thus, the Kelo backlash has led to some important progress in state eminent domain legislation.

It is highly unlikely that any of these states would have moved to curtail eminent domain were it not for Kelo. In the decade prior to Kelo, only one state (Utah) had passed a reform law forbidding economic development takings.

II. Developments in State Courts.

Since Kelo, at least five state supreme courts have banned or limited economic development takings under their state constitutions. Two of these, Ohio and Oklahoma, held that Kelo-like condemnations are categorically forbidden under their states' constitutions. The Ohio case, City of Norwood v. Horney, is particularly important because it addresses blight takings as well as pure economic development condemnations. Significantly, no state supreme court has gone the other way in recent years, with the exception of the Connecticut Supreme Court's narrow 4-3 ruling in Kelo itself.

It is difficult to say whether these state court rulings are a reaction against Kelo or not. Unlike in the case of state legislative developments, recent state supreme court decisions forbidding or restricting economic development takings are a continuation of a preexisting trend. In then ten years prior to Kelo, the supreme courts of Michigan, Illinois, Montana, and South Carolina all held that economic development takings violate their state constitutions, with Kansas being the only state supreme court that ruled the other way during that time. The 2004 Michigan case (which I analyzed in this article), was especially significant because it overruled that court's notorious 1981 Poletown decision, which had upheld the forcible displacement of some 4000 people in Detroit so that General Motors could acquire land for a new factory.

All told, eleven state supreme courts now forbid economic development takings under their state constitutions, and nine of them reached this conclusion before Kelo. However, it is significant that the Supreme Court's ruling in Kelo did not influence state supreme courts to interpret their state constitutions in the same way. Back in the 1950s, the Supreme Court's decision in Berman v. Parker, which held that "blight" condemnations are permissible under the Fifth Amendment's Public Use Clause, helped convince state courts to rule the same way under their state constitutions (as nearly all did). As a result, hundreds of thousands of people were forcibly displaced by "urban renewal" and blight takings during the 1950s and 60s (a history summarized on pp. 268-71 here). By contrast, the Ohio and Oklahoma supreme courts have both repudiated Kelo as a potential guide in interpreting their state constitutions and no other state supreme court has embraced it.

Justice Samuel Alito was not on the Supreme Court when it handed down Kelo in 2005. However, today he revealed that he may not be a big fan of that decision. As Lyle Denniston of ScotusBlog points out, Alito has taken the unusual step of revealing that he voted against the Court's decision to deny a writ of certiorari for Goldstein v. Pataki, the controversial Second Circuit takings case that I blogged about here. As I indicated in my earlier discussion of Goldstein, the taking challenged in that case was clearly permissible under Kelo. Thus, the only likely reason why Alito (or any Supreme Court justice) might have wanted to consider Goldstein would be to overrule Kelo, or at least narrow its scope. Alito's vote to grant cert probably indicates that he at the very least has serious reservations about Kelo.

Moreover, it is extremely rare for the justices to reveal their votes on cert petitions. Alito's decision to break with standard practice in this case suggests that he may have wanted to send a signal about his attitude towards Kelo for the benefit of future litigants.

Whether Chief Justice John Roberts (the other justice appointed after Kelo was decided) shares Alito's views on these issues remains to be seen.

HT: Ilya Shapiro of the Cato Institute, who brought Alito's vote on Goldstein to my attention.

UPDATE: Ilya Shapiro (who, BTW, is not related to me, despite having the same first name), has written a post on this issue here.

Three years ago today, the Supreme Court decided Kelo v. City of New London, the case in which it held that the Public Use Clause of the Fifth Amendment does not forbid government to transfer property from one private owner to another in order to promote "economic development." The Court ruled that "economic development" by private parties is a "public use" of the condemned property and therefore such takings are permissible.

Kelo stimulated a broader political backlash than any other Supreme Court ruling in American history. As I documented in this article, the decision was opposed by at least 80% of the general public and was condemned by politicians and activists from across the political spectrum. It also led 42 states and the federal government to enact new laws purporting to restrict eminent domain power - a more extensive legislative response than that generated by any other Supreme Court decision.

The third anniversary of Kelo is an excellent opportunity to assess the state of property rights today. On the whole, I think there has been considerable progress over the last three years, even if not as much as some hoped. The cause of property rights is ultimately better off with the Kelo decision than it would have been without it. In this post, I explain why Kelo, severely flawed as it is, was an improvement over what came before. In followup posts, I will briefly summarize progress in protecting property rights at the state level, and consider the new political alliances for property rights that Kelo made possible.

As I explained in this 2007 Supreme Court Economic Review article, Kelo leaves property owners almost completely unprotected against takings. As such, it was definitely a defeat for property owners. Moreover, the Court also misapplied early twentieth century "substantive due process" cases to falsely claim that there was a 100 years of precedent supporting its conclusion that virtually any taking is permissible under the Public Use Clause of the Fifth Amendment (see pp. 240-44 of the SCER article).

Nonetheless, Kelo was a significant improvement over Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker(1954), the Court's two previous important Public Use decisions. These two cases had held that any governmental purpose could be a "public use" justifying condemnation so long as it was "rationally related to a conceivable public purpose." By contrast, the Kelo majority opinion imposed a slightly stricter (though still extremely permissive) test on economic development takings and Justice Kennedy's concurring opinion held out the prospect that some takings could be invalidated if there was too much "favoritism" towards private parties (these aspects of Kelo are analyzed in great detail on pp. 227-240 of my SCER article).

Far more important than the majority's insignificant new protections for property owners is the sheer fact that Kelo was a close 5-4 decision in which the dissenters argued that "economic development" takings that transfer property to private parties are categorically banned by the Fifth Amendment. This marks a sea change from the "anything goes" approach unanimously adopted in Midkiff and Berman. Ironically, Justice Sandra Day O'Connor - the author of the Court's ultra-permissive opinion in Midkiff - also wrote the principal dissent in Kelo. In her Kelo dissent, O'Connor event went so far as to repudiate what she somewhat misleadingly called the "errant language" she herself had written back in 1984.

Before Kelo, most experts believed that the Public Use Clause was essentially dead as a meaningful restriction on eminent domain. Since 2005, the issue is once again very much alive. Kelo probably won't be overturned in the near future. But the Court's permissive approach to public use is no longer cast in stone, as most experts believed it was before Kelo.

UPDATE: I have corrected the typo in which I accidentally indicated that Midkiff was decided in 1954 rather than 1984.