Josh Blackman on Kelo and popular constitutionalism

|The Volokh Conspiracy |

In an insightful forthcoming article, prominent constitutional law scholar Josh Blackman argues that the hostile public reaction to the Supreme Court's unpopular decision in Kelo v. City of New London should be considered an important example of popular constitutionalism—the influence of public opinion on constitutional law. Here is the abstract:

In Kelo v. City of New London, the Supreme Court offered its interpretation of the Takings Clause. We the People disagreed. In an unprecedented legal backlash, Americans from across the political spectrum united to oppose what they overwhelmingly viewed as a grievous constitutional error. But this reaction wasn't merely political. Through the auspices of popular constitutionalism, the American people worked to abrogate the Supreme Court's understanding of the Takings Clause and replace it with their own.

This symposium essay, written in honor of Ilya Somin's "The Grasping Hand," explores how popular constitutionalism emerged after Kelo. Part I offers a brief sketch of the Supreme Court's decision in Kelo and how it weakened the constitutional protection of property rights.

Part II charts how voters and legislators in forty-five states enacted reform legislation to curb eminent domain abuse, and claw back Kelo. The intensity and fervor with which the states tackled this issue-in particular those enacted through popular referenda rather than the legislature-is a testament to the populace's rejection of the Supreme Court's constitutional interpretation. Kelo offers an exemplar of how the people, and not the Supreme Court, remain the final arbiters of the meaning of our Constitution.

Part III highlights how popular constitutionalism also impacts state court judges interpreting state constitutions. In one of the more curious developments following Kelo, state courts consistently disregarded Kelo as a guide for interpreting their state constitutions-a departure from how these same courts had followed the federal Supreme Court's lead on the Takings Clause for decades. Many of these judges, acting as conduits of the people, expressly rejected Kelo.

Through both legislative and judicial channels, Americans manifested a wide-ranging constitutional repudiation of the Supreme Court's decision. On Kelo's inglorious decennial, thanks to popular constitutionalism, eminent domain ain't what it used to be.

Popular constitutionalism has gotten a lot of attention from legal scholars in recent years, and Josh is certainly right to argue that the backlash against Kelo is an important example of this phenomenon. Indeed, as he points, the anti-Kelo movement actually had considerably broader support than most other popular constitutional movements, such as the civil rights movement, the feminist movement, and the gun rights movement, among others. While each of these other movements drew largely on one side of the political spectrum for its support, public opposition to Kelo cut across partisan and ideological lines.

I do think it is a little bit of an overstatement to say that the backlash against Kelo is "an exemplar of how the people, and not the Supreme Court, remain the final arbiters of the meaning of our Constitution." The reaction to Kelo led to important progress in many states, but many others adopted weak or largely cosmetic reforms. Josh is right to emphasize the importance of the judicial reaction against Kelo in state courts, which refused to adopt the federal Supreme Court's interpretation of the Fifth Amendment Public Use Clause as a guide to their interpretation of their state public use clauses. However, it is not entirely clear whether these judges were acting as "conduits of the people" or whether they were merely continuing a preexisting trend towards greater state judicial skepticism towards economic development takings. Quite likely, both factors were at work.

Despite these reservations, this article makes a valuable contribution by situating Kelo in the context of popular constitutionalism. While the public backlash against the Court's ruling has not—so far—succeeded in fully reversing the previously dominant understanding of the Public Use Clause, it has mounted a serious challenge to it. In part as a result, there is a good chance that Kelo will be either overruled or limited in the future.

Josh Blackman's article is part of a forthcoming symposium on Kelo in the George Mason Law Review (for which I will be writing a short introduction). I will post links to the other contributions to the symposium as they become available. I should perhaps add that I am very grateful to Josh for dedicating his article to the publication of my book on the Kelo case, and for recognizing me in the acknowledgements (as he notes there, he first learned about Kelo and public use in my Property class at George Mason University School of Law, of which he is now one of the most distinguished recent graduates). But the focus of the symposium is not my book, but rather the Kelo case and its legacy, ten years after the Court's ruling.