At the AALS 2015 Faculty Confernece, I had the honor of speaking on a panel on Kelo at 10 years, along with Ilya Somin (GMU), Carol N. Brown (Richmond), Alexandra B. Klass (Minnesota), and Julia D. Mahoney (UVA). My talk focused on popular constitutionalism and Kelo. Specifically, I compared and contrasted the social movements attending two of the other prominent Supreme Court cases of our young century–D.C. v. Heller and NFIB v. Sebelius (see my article in Public Affairs Quarterly for background).
The social movement concerning the Second Amendment took two decades to lead up to Heller. The social movement concerning the commerce clause in NFIB formed in (literally) a manner of months. In contrast, the social movement for eminent domain reform, though in existence before Kelo, rocketed into prominence in the wake of the case’s backlash. Unlikely allies across the political spectrum–from Rush Limbaugh to Ralph Nader–condemned the case. (Ilya discusses this reaction at great length in his book and articles). This movement impacted over 40 state legislatures (that changed eminent domain laws), state constitutions (popular referendums were enacted by voters), and even state judiciaries (judges interpreted their state takings clauses to provide more protections than federal constitution; the exact opposite happened after Berman v. Parker).
We are looking to perhaps turn our panel into a mini-symposium, so stay tuned for that.
In the meantime, here is video of my talk:
And here is an audio recording of my talk: