The Limits of Backlash: Assessing the Political Response to Kelo

By Ilya Somin. Full text here.

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 post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges 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. This result contradicts the longstanding view that judicial review is not needed to protect individual rights that enjoy the support of majority public opinion.

Part I describes the Kelo decision and documents the widespread anger 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. Thirty-six state legislatures have enacted post-Kelo reform laws. However, twenty-two 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. The major exceptions to the pattern of ineffective post-Kelo reforms are the eleven 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. Survey data collected for this Article shows that only 13% of Americans know whether or not their home state has enacted effective post-Kelo eminent domain reform. The political ignorance hypothesis 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.