A Property Rights Victory in the Magnolia State

One of the unambiguously good results from last Tuesday’s off‐​year elections came in Mississippi, the state I called home the year before I moved to D.C. By the impressive margin of 73% to 27%, voters in the Magnolia State took a stand against judicially sanctioned eminent domain abuse, specifically the government’s taking of private property in the name of so‐​called “economic development.” 


By passing Measure 31, which prohibits most transfers of condemned land to private parties for 10 years after condemnation, Mississippi joins 44 other states in enacting legislation that strengthens property rights in the wake of the Supreme Court’s horrific ruling in Kelo v. New London. In Kelo (2005), you’ll recall, the Court held that state and local governments can condemn private property not for some sort of public project like a highway or military base nor because it is a “blight” that creates a health or safety risk, but simply to transfer to another private party who claims to put it to better economic use. 


We at Cato are all in favor of economic development, of course, but not if that development comes via raw government power that treads on constitutionally protected individual rights. If a developer thinks he can put a given piece of land to a higher‐​value use, let him buy that property fair and square from the owner rather than effectively forcing a sale at below‐​market value.


Indeed, Kelo’s holding was flawed precisely because its rationale that transferring ownership of “economically blighted” property would promote economic development is bad economics. If a proposed project were actually a better use of a given property, the developer would be willing to pay a price sufficient to induce the current owners to leave.


Kelo also undermines property security, making owners less willing to invest in their property and use it productively, lest the government swoop in, declare it “blighted,” and sell it to someone else. And securing property rights is not just a good thing economically. It also helps prevent powerful private interest groups from undercutting the property rights of minorities and other groups who may be vulnerable due to prejudice or political disadvantage.


And the American people agree: Kelo turned out to be a Pyrrhic victory for developers and their public‐​official cronies, such that most of the country is now better protected against eminent domain abuse than it was before Kelo. Notably absent from the list of states where property rights are better off, however, is New York (see my comment on a recent instance of eminent domain abuse in the Empire State).


The judiciary’s abdication of its role as a protector of property rights is bad enough, but our elected officials haven’t done much better. Tellingly, the drivers of successful anti‐Kelo legislation have tended not to be state legislators (with some exception) but rather citizen‐​activists. While special‐​interest groups, such as big car companies in Mississippi, may pressure legislators to avoid anti‐Kelo legislation, even as referenda show that popular opinion is on the side of the property rights activists.


Measure 31 is not perfect, but it is a step in the right direction. The Founders took care to protect private property rights in the Constitution, and it’s heartening to see citizens taking an active role to vindicate those protections even when the Supreme Court abdicates its duty to do so.


For more commentary on the Mississippi vote, see Ilya Somin’s recent op‐​ed.