Somin on Anti-Kelo Legislation: Backlash Politics Has its Limits

The result of public backlash against an unpopular judicial decision like Kelo v. City of New London, though vehement and widespread, shows that backlash politics has its limits, says Professor Ilya Somin in the August/September issue of Reason Magazine.

According to Somin, nearly every state legislature has either adopted or considered legislation to curb the use of eminient domain since Kelo; however, in only 14 states have newly enacted laws significantly increased protection for residents. Somin attributes this to a number of factors, the main being public ignorance over which bills are actually effective versus those being put forward for show. Politicians, says Somin, can appease voters angry about Kelo by passing laws to "reverse" it, while simultaneously avoiding the ire of development interests by not giving those laws teeth.

NOTE: Hear Professor Somin discuss this topic on KION Radio (Monterey, Salinas, and parts of San Jose, California) in an August 17 interview on the program "Wake Up With Mark Carbonaro."

The Limits of Anti-Kelo Legislation, reasononline, Aug./Sept. edition.

"In Kelo v. City of New London (2005), the U.S. Supreme Court allowed the government to condemn property and transfer it to other private owners in the name of 'economic development.' Upholding the forced transfer of land in New London, Connecticut, to private developers, the Court ruled that virtually any potential public benefit satisfies the Fifth Amendment's requirement that the authorities can take property only for a 'public use.' Traditionally, a public use had meant a government-owned facility or a public utility with legally mandated access for the general public. With an economic development taking, property is simply transferred from one private party to another, without any public access requirement. Although the traditional definition of public use had already been vastly expanded by previous decisions, Kelo drove the change home to the general public.

"The ruling generated more and broader opposition than any other Supreme Court decision of the last several decades. A 2005 survey by the Saint Index, a polling organization specializing in land use issues, showed that 81 percent of Americans opposed Kelo, a backlash that cut across traditional partisan, ideological, and racial lines. Eighty-five percent of Republicans opposed Kelo, but so did 79 percent of Democrats and 83 percent of independents. The decision was likewise opposed by 82 percent of whites, 72 percent of blacks, and 80 percent of Hispanics.

"Politicians on both the right and the left hurried to condemn the Court's ruling. Though the decision was supported by all the liberal justices and opposed by most of the conservatives, Democratic National Committee Chairman Howard Dean denounced "a Republican-appointed Supreme Court that decided they can take your house and put a Sheraton hotel in there." California Democratic Rep. Maxine Waters,a prominent African-American liberal, called Kelo-style takings 'the most un-American thing that can be done.' On the other end of the political spectrum, the conservative talk show host Rush Limbaugh condemned the decision for letting the government 'kick the little guy out of his and her homes and sell those home[s] to a big developer'

"Many observers expected the backlash to prompt legislation that would make judicial protection against economic development takings unnecessary. In a fall 2005 Harvard Law Review article, federal appeals court judge Richard Posner, arguably the nation's most respected judge and most prominent legal scholar, wrote that the political response to Kelo is 'evidence of [the decision's] pragmatic soundness.' Judicial action would be unnecessary, Posner suggested, because the political process could take care of the problem. In his confirmation hearing before the Senate, future Supreme Court Chief Justice John Roberts said that the public reaction to Kelo shows that Congress and state legislatures 'are protectors of the people's rights as well' and 'can protect them in situations where the Court has determined, as it Kelo, that they are not going to draw [the] line.'

"Although important progress in protecting property rights has been made in some states, such predictions turned out to be seriously overstated. The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform."

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