Kelo’s election scorecard
Can’t tell the referenda without a scorecard!
Evidently the storm of publicity following Kelo v. New London, the Supreme Court’s controversial 5-4 affirmation of established jurisprudence on eminent domain for economic development (ED4ED), has had a meaningful effect, with 10 of the 12 eminent-domain-restrictive ballot questions passing, as outlined in this handy scorecard from the National Conference of State Legislatures:
Ilya Somin of the excellent group legal blog The Volokh Conspiracy, who’s both a strong opponent of ED4ED and a thorough and prolific Constitutional scholar, provides a helpful interpretative gloss:
Somin keeps a grip on his property
The only two anti-Kelo initiatives that failed were proposals in
I disliked and strongly opposed the California initiative, for reasons first expressed by Supreme Court Justice Oliver Wendell Holmes Jr.:
“Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”(4)
and am very glad to see it defeated.
A stand-alone regulatory takings initiative was also defeated in the state of
Because of their implications for affordable housing and owners’ contractual rights, I’ve written extensively elsewhere about regulatory takings (which are economic confiscation rather than physical invasion). They’re of concern because they are often camouflage for government nicking away property value, which Justice Holmes endorsed with the grandly vague formulation that it not go ‘too far’:
On the one hand, as he wrote, “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.”
[…] Since that decision, most of the debate over regulatory takings has focused on what constitutes going “too far.”
Justice Holmes always made sure his mustache did not go ‘too far’
At the micro level regulatory taking (and its flip side, regulatory value enhancement) is an extrinsic consequence of just about everything government does. One may infer that voters instinctively recognized, along with Justice Holmes, that holding every penny of property value sacrosanct would be unsustainable and government would grind to a halt.
As to the anti-Kelo initiatives, do they have proper teeth?
Will these bite as they should?
More importantly, of the ten anti-Kelo initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly seven (counting Michigan) are well enough worded to provide strong protection to property owners that would succeed in banning all or most economic development takings in those states.
This is a much better batting average than that of post-Kelo reforms enacted by state legislatures, most of which tend to provide little or no protection for property owners (see, e.g., my analysis here, here, and here, and Tim Sandefur’s excellent article on the subject).
Except in his evaluation of the holdout problem, about which we’ve corresponded and agreed to disagree, I endorse Professor Somin’s legal analysis; whether one agrees with his antipathy toward ED4ED, it’s been incisive in exposing the papier-mache protections some states offered up.
Pretty fearsome defender, huh?
Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are “reforming” eminent domain without actually doing so.
We’re impersonating legislators.
Ah, the power of political vaporware!
Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.
Again via the NCSL, here’s a hyperlinked table listing the measures.
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Amendment 5 (c) |
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Green = measure passed
Red = measure failed
Free, and worth every penny!
