The Limits of Anti-Kelo Legislation

Reason, Dec, 2007 by Scott Bullock

Ilya Somin complains that the backlash against eminent domain abuse has failed to produce significant changes in the law ("The Limits of And-Kelo Legislation," August/September). He argues, incorrectly, that because of "public ignorance" of what constitutes effective reform most reforms provide little or no protection to home and small business owners.

The proper starting point for analysis is the day before the U.S. Supreme Court's despised decision in Kelo v. New London (2005). At that point, eminent domain laws in virtually every state were completely rigged against property owners. Since the decision, dramatic changes for the better have occurred in a variety of contexts. Consider some of them:

* Two state supreme courts have explicitly rejected Kelo, while three others have questioned the validity of the decision under their state constitutions.

* As of this writing, 42 states have changed their eminent domain laws through either citizen initiative or legislation. About half of these measures provide strong protection against the abuse of eminent domain, and virtually all represent an improvement over the terrible laws that were on the books before Kelo.

* Just about every reasonably well-informed person in the country now knows about eminent domain abuse, and the vast majority oppose the use of eminent domain for private development. This public opposition has led to a complete change in the Zeitgeist. While public officials, planners, and developers in the past could keep condemnations for private gain under the public's radar screen and thus get away with the seizure of homes and small businesses, that is no longer the case. Susan Pruett, general counsel for the Georgia Municipal Association, has called Kelo "the worst case we ever won."

There are two main ways eminent domain can be abused for private development. First, a government can simply declare that the new project will produce more economic benefits--tax revenue, jobs, and an overall improved economy--and that these new "higher and better" uses of property justify the takings. Most of the states that have passed reform have prohibited this type of taking, which was at issue in Kelo.

Second, the government can declare neighborhoods "blighted" through vague and expansive definitions that permit the government to proclaim virtually any poor or even middle-class neighborhood blighted. Somin's main complaint is that many of the states that have reformed their eminent domain laws have not changed their blight laws, so blight designations can still be a back-door way to use eminent domain for private development. But Kelo was not a blight case, so even a favorable decision in Kelo would not have changed state blight laws. In the states that have changed their blight laws--and more than 20 have done so--property owners are actually better protected than they would have been if Kelo had come out the right way.

What has happened in the wake of Kelo is a classic example of losing the battle but winning the war. Much work certainly remains to be done, but denigrating post-Kelo reform does nothing to secure the property rights of homeowners and small businesses. We invite Somin to refocus his efforts, as he has in the past, on legal advocacy against eminent domain abuse. He will then be able to build on the great progress that has been made during the last two years, progress that demonstrates why so many people come up to those of us in the trenches and say, "Congratulations on Kelo."

Scott Bullock

Senior Attorney

Institute for Justice

Arlington, VA