We'll all find out soon whether next week's elections yield the "Democratic wave" so many political seers have predicted. There isn't much doubt, however, about another kind of electoral wave that has been building across America and is set to crash on Tuesday.
That tsunami is the property-rights backlash, which is the direct result of last year's misguided and deeply unpopular Supreme Court decision in Kelo v. City of New London. A narrow Court majority decided that the Constitution's "takings" clause somehow allowed the government to seize private property not merely for "public use" but also on behalf of other private interests.
As Justice Sandra Day O'Connor argued in dissent, this departed from 200 years of precedent and was an invitation for the politically powerful to use government as an ally against the weak. The one grace note was the majority's concession that "Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."
Next week's vote will show just how many Americans are taking up the Court's challenge. No fewer than 11 states (see nearby table) have ballot measures designed to limit government's ability to pilfer private property for someone else's private economic development. Eight initiatives would enshrine those restrictions in state constitutions, and polls show that most are headed for victories.
These referendums build on anti-Kelo measures already passed by state legislatures, which aren't known for moving quickly, much less for exhibiting courage in the face of the powerful special interests (developers, local governments) driving eminent domain abuses. But fear is a powerful motivator, and voter anger at Kelo has yielded striking results. Some 28 states have already passed statutes that limit "takings" powers, and five of Tuesday's 11 ballot measures were crafted by state legislatures.
Alabama was the first to move after Kelo, passing a statute in 2005 that still gave government the leeway to pursue private property that could be defined as urban "blight." This turned out to be a major loophole, which city planners have routinely applied to any home or business they wanted to condemn and then transfer to private developers. Alabama's legislature closed that loophole this year, and "blight" is now defined in the better reforms as a property posing a danger to health or public safety.
Arizona's legislature also passed a strong anti-Kelo bill, only to watch Democratic Governor Janet Napolitano veto it in June. Arizona voters responded by pursuing their own initiative that is even wider in scope. The best model may be Florida, where the legislature passed a Constitutional amendment that goes before the voters next week.
All of this has occurred despite furious lobbying by local municipalities and developers to water down legislation. The lobbying has sometimes worked with state legislatures, but voters in Idaho, North Dakota and California have responded with ballot language for constitutional amendments that go further than their own state statutes. This ballot language tends to be legally clearer, and such constitutional provisions are harder for politicians to evade or weaken later when voters aren't looking.
At least three of these Kelo initiatives--in California, Arizona, Idaho--also include requirements that states compensate citizens for regulations that devalue property. These measures are, unfortunately, proving a harder sell at the polls, because state politicians are frightening voters with claims that such compensation would bankrupt states. Voters should instead look to Oregon, whose own "regulatory takings" law that passed in 2004 has shown the opposite. State land planners have been so worried about the cost of their actions that they are imposing fewer regulations in the first place.
As is so often the case when it comes to economic freedom, the states absent from this debate are those with liberal legislatures on the East Coast. Politicians in New York, New Jersey and Connecticut (home of Kelo) are so addicted to the tax revenue they get by forcible property transfers to rich developers that they refuse to act on behalf of property rights. This is one more reason for their citizens to keep fleeing these states for more hospitable climes, much as Third World countries that fail to protect property rights watch their human capital flee.
Also absent from this action has been the federal government. The House last year passed legislation that denies federal funds to local governments that use eminent domain for private development. The Senate, per usual, sat on its thumbs. Maybe the sound of the Kelo wave crashing next Tuesday will spur Judiciary Chairman Arlen Specter to listen to the voters and act to protect one of the rights on which America was founded." (OpinionJournal.com 11/4/06)
Supreme Court Blowback
The 11 states where anti-Kelo property-rights initiatives will be on the ballot Tuesday. Louisiana voters approved a constitutional amendment Sept. 30.