The Limits of Backlash: Assessing the Political Response to Kelo


The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of "economic development,"generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted or considered post-Kelo reform legislation to curb eminent domain. This Article  is the first comprehensive analysis of the legislative response to Kelo. Itchallenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings.  Most of the newly enacted post-Kelo reform laws are likely to be ineffective.

Part I describes the Kelo decision and then documents widespread anger that it generated. Both state-level and national surveys show overwhelming public opposition to "economic development" takings — opposition that cuts across racial, gender, political, and socioeconomic divisions. The backlash against Kelo is the largest against any Supreme Court decision in decades, and the legislative response is possibly the most extensive to any Supreme Court decision in history.

Part II  analyzes the state and federal political response to Kelo. Twenty-eight state legislatures have enacted post-Kelo reform laws. However, seventeen of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that  had little or no history of condemning property for economic development. Only six states that had previously engaged in significant numbers of economic development and blight condemnations have enacted post-Kelo legislative reforms with any real teeth. The major exceptions to the pattern of ineffective post-Kelo reforms are the ten states that recently enacted reforms by popular referendum. Strikingly, citizen-initiated referendum initiatives have led to the passage of much stronger laws than those enacted through referenda initiated by state legislatures.

Finally, Part III advances a tentative explanation for the pattern of ineffective post-Kelo reform, in spite of overwhelming public sentiment in favor of such legislation. I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. The political ignorance hypothesis is imperfect. However, it  accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo, in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.