Somin on Property Rights in NRO
Lack of campaign focus on the issue of property rights is unfortunate, says Professor Ilya Somin, but the nation's next president could do a great deal to strengthen constitutional property rights.
Somin remarked in an op-ed in National Review Online that the winner of this fall's presidential election could ultimately appoint justices who would determine whether Kelo will be overruled or limited in its impact in the future.
Second, the next president could help protect property rights through the legislative process, supporting passage of the Property Rights Protection Act and broadening its scope.
Last, Somin points out, the next president could strengthen President Bush's June 2006 executive order on eminent domain in which federal agencies are forbidden to enact condemnations intended to "merelyâ€¦advance[e] the economic impact of private parties."
Kelo, M.I.A., National Review Online, April 2, 2008. By Ilya Somin.
"Some may assume that presidential action is unnecessary because the problem has already been solved by the legislative backlash against Kelo. Forty-two states have indeed passed legislation seeking to curb eminent-domain authority. However, the majority of the new laws are likely to be ineffective. California, New York, New Jersey, and Texas are among the major states that have enacted purely cosmetic reforms or none at all.
"Legislators have found many ways to produce bills that appear to protect property rights without actually doing so. The most common tactic is that of allowing economic-development condemnations to continue under the guise of alleviating 'blight.' Many states define 'blight' so broadly that almost any neighborhood qualifies.
"Widespread ignorance probably plays the key role in stymieing legislative reform of the kind voters want. Much specialized knowledge is required to tell the difference between an effective 'anti-Kelo' bill and one that is just for show. Most voters lack the ability and the incentive to scrutinize such details closely. A recent Saint Consulting Group survey showed that only 21 percent of Americans know whether their state has enacted eminent-domain-reform legislation since Kelo, and only 13 percent know whether their state's legislation is likely to be effective or not. Such ignorance makes it easy for state officials to pass off cosmetic legislation as genuine 'reform.'"