Property Rights Three Years After Kelo, Part III - A New Cross-Ideological Coalition for Property Rights?

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.