Kelo Backlash Update:

An excellent paper by Tim Sandefur summarizes the disappointing results of the political backlash stimulated by Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private citizen to another for purposes of "economic development."

In the aftermath of Kelo, many commentators, including Judge Richard Posner and Chief Justice John Roberts at his Senate confirmation hearings claimed that state legislative reform is a viable alternative to judicial enforcement of public use limitations. Posner even claimed that it provides justification for the Court's decision in Kelo itself (see my paper on Kelo, pg. 65-66). Although some forty states have either adopted or considered legislation to curb eminent domain power in the aftermath of Kelo, Sandefur concludes that only five - "Indiana, South Dakota, Georgia, Pennsylvania, and Florida" have enacted laws that actually provide "strong protections for property rights." Numerous other states have passed laws that purport to restrict eminent domain abuse but actually do little or nothing.

In my view, the situation may be even worse than Sandefur suggests. Of the five states that have enacted meaningful legislation, two (South Dakota and Georgia) have little or no history of private-to-private condemnation for economic development in any case, and one (Florida) already has a judicial ban on economic development takings (though the new Florida law also restricts "blight" condemnations). As Sandefur points out, the Pennsylvania law to a large extent excludes the cities of Philadelphia and Pittsburgh, where most of the state's development condemnations actually occur. Thus, only the Indiana and (to a lesser extent) Florida laws represent truly significant progress. I also think, for reasons discussed in my own forthcoming article on Kelo, that Sandefur is overly optimistic about anti-Kelo legislation being considered by the US Congress.

Why has the Kelo backlash largely failed? Sandefur blames the political power of development interests who benefit from private-to-private condemnations and the lack of a strong philosophical commitment to property rights. Both of these factors play a role. But Sandefur and other analysts fail to explain how development interests could overcome the opposition of the vast majority of the electorate that, according to surveys, opposes Kelo-style takings.

I would argue that political ignorance on the part of voters also plays a major role. A great deal of specialized knowledge and study is required to tell the difference between an anti-Kelo bill that meaningfully restricts eminent domain power and one that does little or nothing. The devil (and the angel, if any) is in the details! Most voters lack the ability or the incentive to scrutinize such details closely. Indeed, as I have argued in much of my scholarly work, it is rational for voters to pay little attention to the details of public policy because there is so little chance that any one voter's decision will have a decisive impact on electoral outcomes.

Developers and other interest groups, on the other hand, have far superior knowledge about the details of legislation and strong incentives to keep track of them. Thus, skilled politicians can satisfy voters angered by Kelo by passing laws purporting to "reverse" it, while simultaneously avoiding the ire of development interests by ensuring that those laws are actually toothless. For the same reasons that ordinary voters don't pay attention to the details of eminent domain law, they are also unlikely to pay attention to the details of its implementation. Thus, most will not notice that little has changed after the passage of "anti-Kelo" laws in their states. Run of the mill takings, even if abusive, are not likely to get the kind of widespread press coverage and attention that Kelo did. This dynamic will only get stronger as the excitement generated by Kelo begins to dissipate and public attention moves on to other issues.

This does not mean that all post-Kelo legislative reform is hopeless. It does, however, suggest that there are severe limits to what such reform can be expected to achieve. At the very least, supporters of property rights should be highly skeptical of claims that legislative reform is an adequate substitute for judicial enforcement of limits on the scope of public use.