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More on the "Waning Anti-Kelo Backlash":

Steven Anderson of the Institute for Justice and the Castle Coalition also cautions against prematurely tolling the bells for the Anti-Kelo backlash in the states. He, like Tim Sandefur, remains optimistic that the states will come through with strong reforms that address the issue.

Steven writes:

There's little doubt that government's ability to dole out favors through eminent domain creates the classic rent-seeking problem, but to say the legislative response to the Kelo decision is running out of steam is a bit premature. The fact that eminent domain remains a topic of debate both on these pages and in legislatures around the country after almost six months is just one indicator of the issue's importance -- and the activity behind it. And that's not the only reason for optimism.

As Tim Sandefur suggested, yesterday the Pennsylvania Senate unanimously passed comprehensive and historic reforms of its eminent domain laws (though it did carve out exceptions for Philadelphia and Pittsburgh). Legislators in more than 30 other states and even more local governments are also preparing reform bills for the legislative sessions that begin early next year. It's important to note that there are very few full-time legislatures; reform cannot occur when they're not in session. In addition to changes by the legislature, there are movements by citizens in several states for ballot initiatives to restrict eminent domain to its more historic bounds.

Sure, the Alabama and Texas laws Tim writes about could have been better if they also tackled blight condemnations, but they are certainly good first steps. That these bills passed despite intense pressure from the well-funded beneficiaries of eminent domain abuse is surely a good sign for future efforts -- at least as much as it's a call for proponents of eminent domain reform to work as hard as possible to make good reform a reality. While Ohio's moratorium puts the issue off, Delaware essentially did nothing and California whiffed, many battlegrounds remain.

Eminent domain reform won't happen overnight. There are powerful groups interested in protecting their territory. But it is happening and any attempt to characterize the fight as over disserves not only the issue, but also those home and small business owners around the country actually working toward a constructive solution. This is a long-term effort and many positive results are on the way.

Certainly I hope that Steven is right that strong responses to Kelo will be possible. Moreover, as I just suggested, it may be that such reforms may be more plausible in states where citizens can propose a referendum on the issue (such as in California), as citizens in those states may have greater ability to circumvent the natural agenda control power of politicians. (Note, I am not saying referenda are always good, just that they may be more effective where policians have conflicts of interest and agenda control). It will be interesting to see how public opinion plays out against public choice theory in the coming months as states continue to address this issue.

A. Nonymous (mail):

[I]t may be that such reforms may be more plausible in states where citizens can propose a referendum on the issue (such as in California), as citizens in those states may have greater ability to circumvent the natural agenda control power of politicians.


You may be interested to know that in South Dakota an effort to strip judges of judicial immunity, sue them civilly and prosecute them criminally (J.A.I.L. 4 Judges) managed to get on the ballot after a decade of trying in 4 states in large measure because of Kelo.

See here and here

Official text and status here

Moreover, they've got momentum using Kelo to go for Nevada and Idaho versions as well. Coupled with low signature requirements (34-40k) and willing to pay the $3-$5 a signature these signature gathering companies are asking, for the "low low" price of $250k, Kelo is getting J.A.I.L. 4 Judges all it needs under the guise of "Stop the judges or they'll take your house".

Add to this that J.A.I.L.'s founder Ron Branson's belief since 1996 and the California version that there's a NWO/Federal Reserve/banker conspiracy to seize all property, and you have a recipe for disaster. J.A.I.L.'s pointing to Kelo and saying in effect that they were right and for a lot of people, the perception is that they at least have a point (property seizure, "unaccountable" judges, etc.)

The Kelo backlash isn't waning. It is coming in ways no one would have ever imagined I'm afraid. Not that these things will pass mind you, but they are going to get on the ballot and thereby attention.
12.8.2005 3:12pm
Steve:
I imagine the crowd who felt Justice Souter should lose his house are in love with this one.

On a separate note, I have a funny feeling we all know what a "banker conspiracy" really means.
12.8.2005 4:35pm
davod (mail):
The problem still rests with the judiciary. There will always be a judge striking down the legislation. I recall the state where they placed a limit on expenditure and the judge ordered the government top spend more on education.
12.8.2005 5:44pm
magoo (mail):
"Stop the judges or they'll take your house"

Sheer idiocy

"There's little doubt that government's ability to dole out favors through eminent domain creates the classic rent-seeking problem"

There's little doubt that every Connecticut Supreme Court justice, included those who voted against New London, concluded that the city was acting out of a desire to promote in the best interests of the public by reducing unemployment, and not to dole out favors, but don't let the truth stand in the way of a good story.
12.9.2005 8:18am
dick thompson (mail):
magoo,

Even if New London was acting out of a desire to promote etc, does that mean that their good intentions trump the rights of the property owners to have a safe and secure ownership of their property as most of them had had for up to 100 years. When you add to that that Pfizer had already built their HQ, how do you then continue that the best interests of the public were still in abeyance. At what point does the private ownership no longer pertain and under what circumstances do you hold that. If I as the big state say that I want to take your property because I want to allow a private company build a marina there so you can just pound salt, which is essentially what New London did, what recourse would you suggest the private property owners have? Is there no place where the private property owners have precedence over what the big state says? If not, then whatever happened to the idea that a man's home is his castle?
12.9.2005 11:54am
magoo (mail):
Dick --

You note "Pfizer had already built their HQ," suggesting that the Fort Trumbull project was no longer necessary. But the project itself was expected to bring in 1000+ new jobs. New London has only 25,000 people, and so the jobs would have been a huge boost to its devastated economy.

"At what point does the private ownership no longer pertain and under what circumstances do you hold that."

As a matter of policy, I would certainly favor a law prohibiting dislocation of the elderly due to the serious health effects, and I would vote for enhanced protections for homeowners, including a clearer showing of the public benefits and greater compensation (beyond FMV) to ensure no out-of-pocket expenses. But the bills being pushed by IJ are not limited to homeowners. They give a veto power over job-creation projects to every owner of a vacant lot or empty warehouse. It's property rights uber alles, absolutist libertarianism. There's nothing in our constitutional tradition that supports that. I'm still waiting for IJ's plan to find jobs for the 1500 New Londoners thrown out of work when the naval base closed.
12.9.2005 12:33pm
Tyrone Slothrop (mail) (www):
[D]oes that mean that their good intentions trump the rights of the property owners to have a safe and secure ownership of their property as most of them had had for up to 100 years?

They've never had that right, if you mean that they should be able to block any taking. The Takings Clause does not prevent the government from taking your house -- it prevents the government from taking your house without just compensation.

I'm not familiar with the reforms proposed, but it seems to me that a simple way to make operation of eminent domain more fair, and to discourage the government from using the power too often, would be to enact a statute requiring compensation at 125% of market value.

(You could go higher, but at some point one worries that certain properties would start lobbying to have their property seized.)
12.9.2005 12:41pm