Since June 2005, America has been in the throes of a populist crusade against eminent domain abuse, touched off by the Supreme Court ruling in Kelo v. City of New London. More than 80 percent of U.S. states have reformed their laws. But not all of these states have challenged the central holding in Kelo: that local governments may deploy eminent domain to acquire private property for “economic development.” Writing for a five-justice majority, John Paul Stevens defended the constitutionality of such Fifth Amendment “takings.” But he also emphasized that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” As we approach the two-year Kelo anniversary, it’s worth considering how many genuine restrictions have been imposed, and why certain states have lagged behind others.

This debate does not cleave the electorate into traditional left-right camps… The NAACP co-authored an amicus brief in Kelo supporting the property owners.

Some have embraced sweeping reforms. Florida outlawed the use of eminent domain to fix “blight” and essentially for any kind of private development. With House Bill 1080, South Dakota prohibited the acquisition of private property via eminent domain “for transfer to any private person, nongovernmental entity, or other public-private business entity; or primarily for enhancement of tax revenue.” Some 86 percent of South Carolinians voted for a 2006 constitutional amendment that banned private-to-private transfers and tightened the criteria for designating a property as “blighted.” A similar amendment in Georgia passed with 83 percent approval. In New Hampshire, 86 percent of voters agreed that “no part of a person’s property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.”

Others states have taken a more cautious approach, while moving in the same general direction. Local governments in Missouri and Nebraska can no longer classify farmland as “blighted.” Maine restricted the use of eminent domain for private commercial development and tax revenue enhancement, but left vulnerable those properties condemned under the state’s broad “blight” criteria. Colorado and Kentucky also tightened the meaning of “public use” under their eminent domain statutes, but they too failed to immunize “blighted” areas.

What specific benchmarks should be allowed to trigger the condemnation process? The Ohio Supreme Court tackled that question in a landmark July 2006 ruling, the first eminent domain case to be both heard and decided by a state supreme court since Kelo. In Norwood, a Cincinnati suburb, properties had been condemned on the grounds that they were “deteriorating.” The Ohio Supremes were unanimous in rejecting this justification. As Justice Maureen O’Connor, writing for the 7-0 majority, put it, “The use of the term ‘deteriorating area’ as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.”

The court also ruled that “economic benefit” alone did not satisfy the “public use” requirement of the Ohio Constitution, and it looked askance at a portion of the state’s eminent domain laws that had effectively permitted the razing of properties prior to the completion of appellate review. This language, wrote Justice O’Connor, “violates the separation-of-powers doctrine.”

Now for the states that have done nothing or virtually nothing since Kelo. They include several in the Northeast, such as Delaware, New York, New Jersey, Connecticut, Rhode Island, and Massachusetts. In Connecticut, where the New London City Council helped make Susette Kelo’s surname famous, the legislature passed a toothless reform bill earlier this month, while rejecting a much tougher amendment. The legislation signed by Delaware Governor Ruth Ann Minner in July 2005 was even weaker.

New York legislators scurried to safeguard wealthy golfers from a potential eminent domain assault on their Long Island club. But the defense mechanism was a narrowly targeted bill that barred municipalities from using public money to acquire property “located within a special groundwater protection area” that was “being used as a recreational facility or open space,” unless said land was already for sale. Deepdale Golf Club fit these criteria. That was basically the extent of Albany’s post-Kelo reforms, even though the Empire State has been a serial eminent domain abuser for years.

Eminent domain reform is about keeping ownership of your land. ‘Regulatory takings’ measures are far more complex and controversial: They require government to compensate private parties when land’s value declines because of a government policy.

Across the Hudson River in New Jersey, cities and townships have been fighting tooth and nail against any real encroachment on their condemnation powers. Because the Garden State is so densely populated, and its urban hubs so crowded, many local officials insist that eminent domain is an indispensable tool for commercial expansion. In a state famous for its “pay-to-play” political culture, the ties between well-heeled developers and city councils create a major hurdle for any anti-Kelo legislation.

At the same time, New Jersey Public Advocate Ronald Chen has emerged as a vocal champion of reforming the state’s “blight” criteria and squelching inappropriate condemnations. In his massive May 2006 report on the need for reform, Chen observed that, according to New Jersey law, “A mere finding that land is ‘not fully productive’ now empowers a governing body to use eminent domain. Not only does this go well beyond any reasonable definition of blight, but this language puts virtually no limitation on the finding of blight, given that any property could plausibly be more productive (e.g., add one more floor to any building or one more housing unit to any development).”

In a follow-up report, just released, Chen once again urged Trenton to act, arguing that “without swift legislative reform, existing legal protections are inadequate to prevent eminent domain abuse.” He remains hopeful that a case now pending before the New Jersey Supreme Court—stemming from an eminent domain squabble in Paulsboro—will lead to stricter “blight” standards.

Another state whose current laws offer a hopelessly vague definition of “blighted” is California, where voters defeated a reformist initiative this past November. That showed the perils of mixing eminent domain reforms with so-called “regulatory takings compensation.” The latter is a far more complex and controversial idea: It basically mandates the reimbursement of property owners for land value lost to government regulations, with various exceptions. Such a ballot initiative (Measure 37) passed in Oregon in 2004.

Several states, including California, put regulatory takings reform on the 2006 ballot. The Golden State’s Proposition 90 linked it with mild eminent domain revisions, as did Idaho’s Proposition 2. The former quickly became a cause célèbre for West Coast greens and certain Hollywood celebrities. “Left-leaning conservationists—including Robert Redford—are lining up with conservative business organizations to oppose the initiative,” reported CNNMoney.com. Environmentalists like Redford fretted that Proposition 90 would “tie the government’s hands in enacting tough conservation regulations,” while others warned about the potential taxpayer tab should large property owners demand remuneration. The measure wound up losing narrowly, 52 percent to 48 percent. In Idaho, 76 percent voted against Proposition 2.

Why was the opposition so fierce? “Urban growth boundaries, agricultural protection ordinances, wetlands regulations, historic district rules—just about any kind of land-use rule would be more vulnerable to litigation if the [regulatory takings] measures were adopted,” John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute, told The Christian Science Monitor before the election last fall. “[The West] would be a lot more polluted, it would be a lot more congested, and it would be a lot less green if these measures were enacted.”

In the end, three out of the four states that voted on regulatory takings compensation in 2006—and they were all in the West—rejected it, including Washington State, where it fell by 58 percent to 42 percent. (In Nevada and Montana, courts tossed similar initiatives off the ballots, deeming them invalid.) The one exception was Arizona, where Proposition 207—combining muscular “public use” and “blight” reform with regulatory takings language—passed by a hefty 30-point margin (65-35).

In Oregon, where Measure 37 passed three years ago, 2006 proved a big year for eminent domain reform. In February, the notably liberal Oregon Supreme Court reversed a lower court ruling that had declared Measure 37 unconstitutional. “Nothing in Measure 37 forbids the Legislative Assembly or the people from enacting new land use statutes, from repealing all land use statutes, or from amending or repealing Measure 37 itself,” wrote Chief Justice Paul J. De Muniz. “Simply stated, Measure 37 is an exercise of the plenary power, not a limitation on it. The measure does not impair the plenary power of the Legislative Assembly or the people’s exercise of their initiative power.”

Meanwhile, Oregonians backed a citizen ballot initiative outlawing most private-to-private transfers under eminent domain, permitting a “blight” exemption only when the property at stake “constitutes a danger to the health or safety of the community by reason of contamination, dilapidated structures, improper or insufficient water or sanitary facilities, or any combination of these factors.” Measure 39 passed by 34 points (67-33).

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Although the three governors who vetoed post-Kelo reform bills—Janet Napolitano of Arizona, Bill Richardson of New Mexico, and Tom Vilsack of Iowa—were all Democrats, eminent domain is hardly a partisan issue. Governor Richardson, for example, claimed it needed more study, and he created a task force with that mission. Then, in early April 2007, Richardson signed a new law that, according to the Albuquerque Journal, “specifically removes eminent domain power from the Metropolitan Redevelopment Act, a comprehensive economic development statute.”

Indeed, this debate does not cleave the electorate into traditional left-right camps. It defies the polarization and party line bickering that now seem so endemic in Washington. To be sure, conservatives profess a deeper Lockean ideological attachment to the sanctity of property rights; and right-wing talk show hosts in particular have had a field day trumpeting the erosion of those rights. In Congress, House Republicans have voted in greater percentages than House Democrats to discourage eminent domain abuse.

But not all Republicans have joined the pro-reform chorus. The GOP’s big business wing tends to prefer broad eminent domain powers for municipalities: How else, they ask, would many of these lucrative redevelopment schemes move forward? In Oklahoma, for example, the state Chamber of Commerce has ardently resisted attempts to clarify “blight” statutes and curtail local condemnation authority. (And, so far, the Chamber has gotten its way.) Such corporate behemoths as Wal-Mart, Target, Costco, and Home Depot have used eminent domain to build new outlets in densely populated areas. Small businessmen generally take a different view, worried their properties may one day fall into the crosshairs of a wealthy developer.

Among Democrats, liberal “smart growth” advocates often consider eminent domain a means of thwarting suburban sprawl. Their central planning ethos also dictates that government should have the ability to launch “urban renewal” programs and clean up bad neighborhoods. The trouble is, many of the Democratic Party’s core constituents—namely African Americans living in the inner city—have born the brunt of eminent domain for decades.

With that in mind, the NAACP co-authored an amicus brief in Kelo supporting the property owners. As Justice Clarence Thomas put it in his Kelo dissent: “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.”

Not all Republicans have joined the pro-reform chorus. The GOP’s big business wing tends to prefer broad eminent domain powers for municipalities: How else, they ask, would many of these lucrative redevelopment schemes move forward?

It shouldn’t be surprising that California Congresswoman Maxine Waters, the firebrand left-wing Democrat from South Central Los Angeles, has become a leading voice for post-Kelo reforms, even working with conservative Republicans. Michigan Congressman John Conyers, another black Democrat typically at odds with conservatives, shared Waters’s outrage over the June 2005 decision, and both broke with the majority of House Democrats to support legislation that barred federal transportation funds from being used for Kelo-style eminent domain projects.

Waters and Conyers also voted for another bill that imposed a two-year moratorium on federal economic development aid to those local and state governments that allowed private-to-private transfers. This bill passed the House in November 2005 but then languished in the Senate, where Judiciary Chairman Arlen Specter of Pennsylvania failed to move it out of committee. Thus far, it has not resurfaced in the 110th Congress.

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So how much have things really changed since Kelo? On the one hand, the tidal wave of state reform laws has been astounding. The ruling clearly touched a nerve and sparked a response that has yet to abate. On the other hand, many states appear to be taking a piecemeal approach. And some of the most flagrant practitioners of private-to-private transfers have stood athwart the tide. “Far more important than the raw total of effective and ineffective laws is the fact … that very few of those states that engage in Kelo-style takings the most have enacted effective reforms,” wrote George Mason University law professor Ilya Somin in mid April. “Several large states with extensive records of abuse—including California, New York, New Jersey, and Texas, among others—have enacted either no reforms at all or ineffective ones.”

But Bert Gall, a senior attorney at the libertarian Institute for Justice, feels eminent domain foes should be more optimistic. “Just because the initial reforms a state passes are ‘weak’ doesn’t mean that stronger reforms will not be passed later,” he wrote at Reason Online in early May. “When Alabama first enacted reform, it still allowed condemnations for ‘blight’ under a wide definition of that term. But the legislature later closed that loophole. Texas and Ohio may be following in Alabama’s footsteps by strengthening their initial reforms. It is also notable that some states that failed to pass any reforms last year, such as Virginia and New Mexico, passed strong ones this year.”

Harvard law professor David Barron, a qualified proponent of private-to-private eminent domain actions, has pointed to the recurrent “blight” caveat. “The fact that many anti-Kelo bills restrict the use of eminent domain to blighted areas should therefore trouble even the decision's supporters,” he wrote in the Boston Globe in April 2006. “‘Blight’ is often code for black and poor. One of Kelo’s striking features was that it permitted a city to use eminent domain even without showing that the targeted neighborhood was blighted, so long as it implemented a real plan for redevelopment. In that way, the court indicated cities should not have to do redevelopment on the backs of poor and minority residents in order to comply with the Constitution. There’s nothing to cheer in a legislative reaction that would now limit local governments to doing just that.”

No question, “blight” remains a stubborn technical obstacle to reform. As Barron indicated, even many states willing to ban eminent domain use for economic development have kept a crucial exception for those areas deemed “blighted.” The debate then becomes: What qualifies as “blighted”? How relatively broad or narrow should the criteria be? Vague definitions of “blight” can trigger risible condemnations.

Scott Bullock, a senior Institute for Justice attorney, suggests that “one way to deal with the problem of unjustified takings in the poorest of neighborhoods is to require property-by-property determinations of blight rather than area-wide designations. That way, a city could address true problem properties that pose a direct threat to public health and safety rather than permitting the wholesale takings of poor neighborhoods on nebulous definitions of blight.”

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Nearly two years after Kelo came down, the reformers have much to crow about. The debate has shifted heavily in their favor; public opinion overwhelmingly supports substantial eminent domain restrictions. The laws passed thus far represent “more than I would have expected,” says Clint Bolick, a fellow at the Hoover Institution. Even still, he adds, “The progress has been very incremental, and I fear that the momentum will dissipate.” After all, “The Empire always strikes back.”

Duncan Currie is a reporter at The Weekly Standard.