The Anti-Kelo Backlash?

Timothy Sandefur has an extensive post on "The Kelo Backlash So Far." His conclusion--it hasn't accomplished much so far. Few states have had an opportunity to consider the issue and those that have acted have done so with limited effectiveness. He has a detailed discussion of the provisions of several laws and is unimpressed.

He writes (in part):

In the months after the Kelo decision was announced there was much talk of a "backlash" in the states. Since state law can provide greater protections to people than federal law does, people hoped to change state law to protect themselves from eminent domain abuse. But, as I argue in a forthcoming paper (which will be posted on SSRN shortly), the backlash so far has accomplished little.

Most state legislatures have been out of session since shortly after Kelo was announced, which means that so far only four states have enacted laws in response to Kelo: Alabama, Texas, Ohio, and Delaware. Unfortunately, these four provide little protection for property owners, despite their big promises. In other states, the situation has been even more disappointing. California's legislature considered three measures to limit eminent domain abuse, and turned all three down, even though two of these would have been band-aid solutions that would have done very little. When the other state legislatures come back into session in January, can citizens of other states hope for greater protection? Only time will tell, but I'm pessimistic. There are two major obstacles to serious eminent domain reform: the public choice effect, and the sad state of American political philosophy. Still, there may be reason for optimism: the Pennsylvania state house has passed a bill which, if enacted, would create excellent protections for the state's property owners, and the U.S. House of Representatives has also passed an excellent bill limiting the availability of federal funding for projects in which eminent domain is used for economic development.

SimonD (www):
Without meaning to sound excessively cynical, I'm not sure that it's much surprise that state legislatures have reacted tepidly to a ruling which removes a barrier on the activities of states (i.e., by expanding their power of emminent domain), and encourages corruption that they may well personally benefit from. It simply isn't any skin off their nose.
12.6.2005 3:31pm
Splunge (mail):
You're right! Boy, it sure sounds like individual citizens need some kind of protection from the self-interested power of the state. Hmmm. How about an Amendment to the Constitution, enforced by an agent removed from possibly corrupt local politics -- someone like the Supreme Court -- that would expressly prohibit state taking of private property except for legitimate public uses and...uh...oops...wait a minute...
12.6.2005 3:57pm
Steve Plunk (mail):
I recently sign an initiative petition here in Oregon that would amend the state constitution to protect private property from a Kelo type taking. We love our initiatives and the performance of our state legislature explains why we love them. Now lets pass it when it comes to a vote.
12.6.2005 4:52pm
SRF (mail):
Splunge, that's one of the best comments to a blog post I have ever read!

It seems that media attention is picking up on some level, Shawn Hannity promises to be in Florida tomorrow covering an eminent domain issue for Foxnews.
12.6.2005 10:59pm
Master Shake:
12.7.2005 2:55am
Part of the problem is the issue is more complex than the anti-Kelo people think. Some of their language would prohibit eminent domain for toll roads.

Also, do we really want to say that the government can use eminent domain to build a stadium or shopping mall as long as the government remains the owner? That would encourage ownership to stay in government hands, and I thought that's something libertarians didn't want.

Further, if the government used eminent domain for a project, would it be forever barred from selling the project? Let's say the government built a stadium with eminent domain. Could it sell the stadium to a private buyer in 50 years? 20 years? 5 years? 6 months? 1 day?
12.7.2005 9:20am
magoo (mail):
One less cynical explanation is that, through calm reflection, state legislators are coming to realize that their constituents really like jobs.

Also, if the Founders had such strong views on the use of eminent domain by States and municipalities, why didn't they make clear that the Fifth Amendment applies to the States? And why didn't they couch the public use language as an affirmative obligation (compare the just compensation phrasing) as opposed to a passing reference?
12.7.2005 11:41am
magoo, to answer your question, (a) the Founders didn't suspect that people would think eminent domain for private use would be legitimate; they maybe didn't anticipate something so far from their understanding; and (b) the clarification/extension that individual states also couldn't take away your unalienable rights wasn't made by the Founders, but by survivors of the first civil war. By the way, I'm not particularly qualified to answer this question. Perhaps there are other responses.
12.7.2005 1:27pm
MXF (mail):
The real problem with legislative solutions will be the effect on affordable housing. It's also unlikely that the imposition of a legislative scheme will not have unintended consequences that are worse than the problem. I don't really see that there is a surfeit of condemnations for private development. In downtown Los Angeles, a much greater issue is the drying up of buildings in private hands that are converted to high end condos, driving the old occupants into the streets.
12.7.2005 5:33pm
Tic Tac Addict (mail) (www):
At least locally, there has been a limited (although in typically ineffective New London style) backlash.

The city briefly severed ties with the NLDC, and now the head of that organization is being replaced. An upstart third party took two council seats and came within 19 votes of taking a third (from the now mayor).
12.7.2005 6:14pm
MXF (mail):
This just in:

"Two voter initiatives have been filed with the Attorney General that would eliminate the use of eminent domain for any property that would not be owned and used by a public entity—all but eliminating its use for redevelopment projects. Both measures were submitted by Senator Tom McClintock, Orange County Supervisor Chris Norby, and Jon Coupal, President of the Howard Jarvis Taxpayers Association. Assembly Member Doug LaMalfa is sponsoring one of the measures."
12.7.2005 8:36pm