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Two views of the Kelo backlash

Posted by Richard on July 7, 2006

The Kelo ruling created a backlash against eminent domain abuse, but how strong and successful has that backlash been? Two TCS Daily columns offer very different perspectives on that question. One lamented the half-empty glass, and the other insisted that it’s half-full and filling rapidly.

Pejman Yousefzadeh played the pessimist in his June 29 piece, Unhappy Birthday, Kelo:

Just over one year ago, the Supreme Court validated eminent domain abuse in its decision in Kelo v. City of New London. At the time of the decision, it was predicted by some as way of consolation that the Court’s decision would prompt a spate of anti-Kelo legislation designed to curb eminent domain abuse. In every cloud, they say, there is a silver lining.

It has not turned out that way. And things will not improve until the issue of eminent domain abuse occupies a larger place in the public consciousness than it currently does.

Citing an Ilya Somin post at Volokh, Yousefzadeh lamented "toothless" reform legislation that fools the public, but caters to developers (and he put Bush’s executive order into this category), and quoted Somin to the effect that only two states’ new laws represent significant progress. Yousefzadeh blamed property rights advocates for not working hard enough:

The year after Kelo has largely seen anti-abuse forces fail in the political arena to organize any kind meaningful pushback against the dangers posed by the Kelo ruling. Despite grand promises of a backlash, one has just not come about. And it is not too late to foment a backlash. Thus far, however, the anti-abuse forces have not engaged on the issue of eminent domain abuse as strongly and as emphatically as they might have. And if their intensity does not change, their luck won’t change either.

Today, Bert Gall of the Institute for Justice (which argued the Kelo case) countered with Kelo’s Backlash: Imminent Success?, dismissing Yousefzadeh’s pessimism as totally off-base:

This pessimistic assertion is baffling because it simply can’t be reconciled with reality. In fact, the Kelo backlash isn’t just alive — it’s thriving and producing results that can only be described as historic.

Yousefzadeh cites the abstract of a paper by Timothy Sandefur of the Pacific Legal Foundation, which says that 15 states have passed reforms. However, as of July 3rd, the number of states that have passed reforms has grown to 25 — out of 45 states that had legislative sessions this year. And, it is possible that, in the next month, that number could grow to as high as 29. That’s a pretty impressive batting average for a backlash in its rookie year.

For those who continue to lament that the Kelo backlash hasn’t accomplished enough — either because the laws passed aren’t "good enough," or because total success hasn’t been achieved in the span of one year — a sense of perspective is the proper tonic. 

Gall argued that, far from being "toothless," many of the reforms have dramatically improved the legal situation in their states, generally by making bogus "blight" designations difficult or impossible and/or by putting the burden of proof on the government to demonstrate that a taking is for public use (instead of making the property owner prove that it isn’t).

Gall acknowledged that much more needs to be done and that the number of abusive takings increased after Kelo, but he insisted that the reform movement is a powerful, broadbased coalition fueled by strong momentum for further changes, including federal reform legislation. Pessimism isn’t warranted, he argued:

Those who discount the Kelo backlash because it has not yet changed every states’ laws should keep in mind that large-scale reform movements almost always take several years — if not decades — before they completely succeed. Judged by that standard, the backlash has enjoyed unprecedented success — especially when one considers that the beneficiaries of eminent domain abuse, cities and developers, have fought tooth and nail to maintain the status quo.

Optimist that I am, I side with Gall. Oh, sure, Yousefzadeh is correct that the reforms could be better and the reformers could work harder — but really, that’s just complaining that the world isn’t perfect.

I’m reminded of the concealed carry reform issue. The movement to require issuance of a concealed carry permit to anyone meeting certain requirements began in Florida in the early 1980s. From Day 1, the libertarian gun rights absolutists denounced it because "if you have to ask permission, it isn’t a right." True enough. In an ideal world, "Vermont carry" would prevail everywhere (in Vermont, and now also in Alaska, you don’t need a permit to carry concealed — you have the right to be armed for any lawful purpose). But to dismiss the carry reform movement is to overlook an important gain for proponents of liberty.

Before Florida enacted "shall issue" concealed carry in 1987, permits were routinely issued in only six states, and the issuing agencies generally had broad discretion (ensuring that only the well-connected got a permit). Opponents predicted Florida would become the "Gunshine State," with murder and mayhem and blood in the streets. They were, of course, proved wrong (permit holders are hundreds of times less likely to commit a violent crime than the general population).

The carry reform movement has swept the country — today, in 40 states, almost anyone who wants to carry a gun legally can do so. Crime rates are lower in liberalized-carry states, you seldom hear the hysterical arguments about "wild west shootouts" anymore, and carry reform opponents are on the defensive almost everywhere. A number of states have revisited their original carry reforms and further liberalized them (removing location restrictions, easing qualifications, extending reciprocity to residents of other states, etc.).

Yes, only two states are "perfect," and the rest still "oppress" us gun nuts in some sense. Yes, it’s taken 20 years, and there’s still much more to be done. But you’d have to be pretty churlish — and divorced from reality — to deny that a profound change for the better has taken place.

I suspect that eminent domain reform may follow the path of concealed carry reform — the pessimists/absolutists will bemoan the slow pace and imperfect nature of the changes, but over time, we’ll make significant progress.

Mind you, I’m glad the pessimists/absolutists are out there — they goad us all to work harder and they encourage those who are too willing to compromise to show a little more resolve. Just don’t let their negativity discourage you — there are plenty of reasons for optimism.

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One Response to “Two views of the Kelo backlash”

  1. Carola Von Hoffmannstahl-Solomon said

    The civil rights struggle took decades. Property rights activists should expect to be in it for the long haul. That being said, I’m optimistic about the outcome. Public awareness re eminent domain abuse has increased tenfold and unites individuals and groups across ideological lines. Making eminent domain one of the most powerful– and interesting– issues on the political landscape.

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