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Public Choice and the Waning Anti-Kelo Backlash:

Tom Blumer at BizzyBlog is not surprised that the Anti-Kelo backlash is already running out of steam as a result of public choice pressures.

Update:

More from the Affordable Housing Institute--in addition to the analysis, I recommend clicking through just to see the artistic renderings of the issue.

Update:

Timothy Sandefur notes in the Comments that Tom and I have misunderstood his position as one of a "waning" anti-Kelo backlash:

It's wrong to refer to the "waning" backlash. The point of my post and my article is that the backlash is not waning, but that it has not really begun at all. Most of the state legislatures are in recess, and have been since shortly after Kelo was decided. The four states that have acted are unusual in that regard (Texas and Alabama were in special session). My point was that the Kelo backlash has yet to begin and that if it is to do so, it must avoid the errors made by Ohio, Alabama, Texas, and Delaware.

I (and apparently Tom too) had understood Tim to say that it would be difficult to sustain the backlash and that weak legislation that had been enacted was an inevitable outcome of the legislative process. He appears to be optimistic that stronger legislation can be enacted elsewhere. I apologize if I misread his initial post.

Gordon (mail):
Bizzy Blog states:

The Castle Coalition has a list of "Current Controversies" that has over 130 projects in 25 states and the District of Columbia where previously unconstitutional eminent-domain takings are being strongly considered or pursued.

Bizzy Blog is incorrect - before Kelo these types of takings were NOT unconstitutional - they were clearly a logical extension of the Supreme Court's Berman and Midkiff decisions. The Supreme Court had the opportunity in Kelo to limit these decisions, but didn't do so. Much to my chagrin, but let's not overstate the case here.
12.7.2005 11:18am
Steve:
Gordon has hit on it. For at least the 50 years since Berman was decided, there has been the opportunity for grass-roots movements to limit state eminent domain power. Kelo was not a change in the law, it was simply a wake-up call to a lot of folks who had never heard of Berman and who, somehow, didn't realize that a lot of eminent domain happens in the name of "economic development."

If not enough people are heeding the wake-up call, I, too, find it regrettable. One problem is that there was so much Zywicki-style crying of wolf following the Kelo decision, that when a few years pass and the government has not, in fact, taken away everyone's home, it's going to be even harder to get people to see this as a real problem.

The issue with building a movement against eminent domain based upon distortions and exaggerations of the Kelo decision is that your movement tends to lose momentum and credibility as those exaggerations are exposed, rather than gain it. As someone who would like to see serious eminent domain reform at the state level, but also someone who has wasted a lot of breath trying to get people to discuss Kelo honestly rather than pretend it changed the law in some radical way, I'm of two minds about this development.
12.7.2005 11:38am
Gordon (mail):
Steve, thanks for your perspective. My view was that Kelo should have been decided the other way, but by distinguishing the case from Berman and Midkiff, not overruling those decisions. I think some of the property rights "fundamentalists," would have liked to sweep away several of the foundations of current eminent domain jurisprudence with this decision.
12.7.2005 12:04pm
David M. Nieporent (www):
Bizzy Blog is incorrect - before Kelo these types of takings were NOT unconstitutional - they were clearly a logical extension of the Supreme Court's Berman and Midkiff decisions.
Since we have a system of limited (ha!) government in the United States, "extending" government powers beyond where they have been explicitly granted is another word for "unconstitutional." Whether those extensions are "logical" or not.

If one looks (much more reasonably) at Berman and Midkiff as the outer limits of government power, pre-Kelo, then indeed these types of takings were unconstitutional.
12.7.2005 12:37pm
Timothy Sandefur (mail) (www):
It's wrong to refer to the "waning" backlash. The point of my post and my article is that the backlash is not waning, but that it has not really begun at all. Most of the state legislatures are in recess, and have been since shortly after Kelo was decided. The four states that have acted are unusual in that regard (Texas and Alabama were in special session). My point was that the Kelo backlash has yet to begin and that if it is to do so, it must avoid the errors made by Ohio, Alabama, Texas, and Delaware.
12.7.2005 1:01pm
Steve:
Factually speaking, Kelo probably went beyond Berman, but it certainly didn't go beyond numerous other precedents that upheld eminent domain for economic development purposes, including Ruckelshaus v. Monsanto and any number of decisions that uphold eminent domain to benefit agriculture and mining. I think the petitioners in Kelo sought to roll back many, if not all, of these decisions and I don't think they'd be very ashamed to admit it.
12.7.2005 1:14pm
Timothy Sandefur (mail) (www):
12.7.2005 4:56pm
Justin (mail):
I don't understand why this is a Kelo "backlash" rather than simply "following Kelo".

The holding of Kelo was that, regardless of one thinks of the policy, the right isn't in the Constitution, and thus is in the province of legislators and executives.

It seems just as silly as if Thomas's concurrance in Lawrence was the majroity opinion, and then citizens went out and got sodomy laws legislatively overturned, to call that a "Lawrence backlash".
12.7.2005 5:35pm