When the Supreme Court upheld the constitutionality of condemnations for “economic development” in Kelo v. City of New London, it ignited a firestorm of political outrage greater than any other Supreme Court decision in decades.
Yet, post-Kelo eminent domain reform is ineffective, and public ignorance can make it easy for politicians to pass off cosmetic “reforms” as genuine bans on Kelo-style takings, writes Ilya Somin, assistant professor at George Mason University School of Law, whose research focuses on property law, popular political participation and its implications for constitutional democracy.
As I document in Part I of my updated paper on post-Kelo reform, 80-90% of the public disagreed with the decision, as did political leaders and activists from across the political spectrum.
Forty-two states and the federal government enacted new legislation intended to curb eminent domain – a greater legislative response than that generated by any other Supreme Court decision in history. However, as Part III of my paper explains, the majority of these laws fail to impose any meaningful constraints on economic development takings, usually allowing them to continue under other names (typically, as “blight” condemnations).
Why have so many post-Kelo reform laws been ineffective? Recent public opinion data that I have collected through the Saint Consulting Group’s Saint Index survey support my conjecture that political ignorance plays an important role. In the SCG’s 2007 Saint Index survey, conducted last August, only 21% of Americans could correctly answer a question about whether or not their states had enacted post-Kelo eminent domain reform, and only 13% could both correctly answer that question and a follow-up question about whether or not their state’s reform law was likely to be effective in curbing economic development takings.
Public ignorance about post-Kelo reform – like opposition to Kelo itself – cuts across racial, ethnic, gender, ideological, and partisan lines. Moreover, the figures given above probably overstate the true level of public knowledge about post-Kelo reform; some significant number of respondents probably got the “correct” answers by guessing rather than because they actually knew. The survey data is presented and analyzed in detail on pp. 42-49 of my paper. If most voters know little or nothing post-Kelo reform in their state or its likely effectiveness, it should be easy for politicians to pass off cosmetic “reforms” as genuine bans on Kelo-style takings. As I explain in the paper, this is a more compelling explanation for the relative paucity of effective reforms than the usual claim that reform has been stymied by developers and other powerful interest groups. In the absence of political ignorance, state legislators would not be able to benefit politically from sacrificing the desires of the vast majority of the public to the needs of small interest groups. After all, some 81% of Americans say they oppose the Kelo decision (63% “strongly”), and 71% say they support state legislation to ban economic development takings (43% “strongly”) (see pp. 7-8 of the paper for cites). If even a fraction of those who strongly oppose Kelo were well-informed about post-Kelo reform, they could easily form a voting bloc large enough to outweigh the electoral influence of pro-condemnation interest groups.
The machinations of interest groups are certainly a part of the post-Kelo story. But those machinations would probably have been much less effective in the absence of widespread public ignorance. Ignorance about public policy is generally rational and is not a sign of “stupidity.”But that doesn’t prevent it from causing serious harm. I would like to take this opportunity to thank the Saint Consulting Group for allowing me to insert two questions about public knowledge of post-Kelo eminent domain reform into their annual Saint Index survey. Obviously, the SCG is not responsible for conclusions I have drawn from the data they compiled.
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