Lindsey Weinstock

“A Progressive Dilemma” is a regulary occuring feature, which explores issues of debate within the progressive community.

he issue of legislative authority has been discussed a great deal as of late in the context of increasing Presidential power and the widening scope of executive influence. In a piece in the Jan. 8, 2006 edition of The New York Times Magazine, Noah Feldman made an appeal for an expansion of Congressional power as a check on an increasingly dominant president. This makes sense; the representatives directly elected to legislate and make policy ought to have a significant, if not the ultimate, say in how their laws are interpreted and carried out by the executive. In this time of increased fear and emphasis on security in politics, we (“the people”) ought not to lose sight of where and what kind of authority lies with our government. So, if we are to assert legislative authority in order to maintain the balance that our constitution prescribes, what kind of authority are we to recognize? What is its nature, and what are its limits?

Kelo v. City of New London, 162 L. Ed. 2d 439 (2005), is extremely important in defining this legislative authority. Decided by the Supreme Court this past summer, the case involved nine residents of New London, CT who objected to the condemnation of their property by the city government. The city legislature, as part of a plan of economic renewal, sought to utilize its power of eminent domain to seize the properties and transfer the land to Pfizer, a pharmaceutical company that would build a plant on the condemned property. The residents claimed that this use of eminent domain was unconstitutional under the Fifth Amendment, applied to the states by the 14th Amendment. The Fifth Amendment states, “private property [shall not] be taken for public use, without just compensation.” The first clause, known as the takings clause, has traditionally been interpreted by the Court to mean that government can seize private property, as long as the seizure is accompanied by just compensation, for use with a “public purpose.” The opinion of the Court, delivered by Justice Stevens, asserts that a deferential standard of review should be applied; since the intent of the legislature appeared to be to make improvements to the community in the form of new jobs and increased tax revenue, its exercise of the power of eminent domain is constitutional, the argument goes, because it is for a public purpose in the eyes of the legislature. In other words, the majority was satisfied to allow the legislature to determine what constitutes a public purpose. The case, for the majority, was not about the individuals' right to private property, but rather, about preserving the authority of the legislature to craft public policy, and, ultimately, to draw the line between public and private benefit.

I argued in my preceding article (AdHoc Magazine Vol. 1, Issue 1) that such deference poses a dilemma for progressives. On the one hand, government should be an agent of the people, free to make policy and redistribute in the public interest. This includes expropriating private property for public purposes: not only for public works projects such as the building of roads or bridges, but for community development and projects in the public interest that might require transferring the property to another private entity to implement the project. An example might be a project to provide low-income housing. On the other hand, government's exercise of eminent domain could also have a disparate impact upon individuals in poor and minority communities, who have the least influential say in policymaking. To define the authority of legislatures — to empower them to serve the public and simultaneously to check possible infringements on the fundamental rights of individuals — is the central concern of this dilemma.

The takings and compensation clauses of the Fifth Amendment mean two things: 1) that there is a fundamental, express right to private property, and 2) that this right is contingent in that the government may expropriate property as long as that taking is for a public purpose (according to contemporary jurisprudence) and is justly compensated. The right to private property is fundamental in our legal and constitutional system, but it is also conditional. The qualifications that the founders added to the Constitution to protect a fundamental right from abuse imply that the government has the authority, in instances in which it is acting for a public purpose, to expropriate private property, as long as it is justly compensated. It is therefore reasonable to assert that while legislatures should have broad authority to craft policy for public purpose, the courts should still ensure that individual rights are not infringed upon in the process.

The Court, in Kelo, is satisfied to allow the legislature to determine what is a public purpose. However, this poses the possible problem of neglecting the judicial responsibility of determining if and how a constitutional right has been violated. Justice Stevens argues that in order to give the legislature due deference in policymaking, in which the Court should have minimal say, limited scrutiny should be applied. However, I would like to argue, instead, that strict scrutiny is appropriate and essential in cases in which property not intended for direct use by the public is being transferred from one private entity to another. Where the public interest stops being public and starts becoming private is a judicial question in this case and others like it because favoring one private interest over another runs a serious risk of violating an express constitutional right. The deliberations of a legislature will almost always legitimize the body's actions by cloaking them in the rhetoric of public interest, but even so, legislative authority should not for this reason be curtailed by the courts. Questions of legislative motivation will always be multifaceted, and judicial scrutiny of motivation is thus very susceptible to error and manipulation. Governmental actions and intentions, however, are subject to legal limitations, based on individual rights. As a result, I must disagree with the Court that “our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny” (Kelo 453-454). On the contrary, a strict scrutiny standard should be applied when the legislature seeks to utilize the power of eminent domain to transfer property from one private entity to another for something that is not intended for use by the public. It is the duty of the courts to decide whether fundamental rights have been violated in specific cases, and this is a task the Court has neglected in Kelo.

Justice O'Connor, in her dissent, argues that without the courts' involvement in determining the line between public and private property use, the check on governmental power provided by the takings and compensation clauses would be meaningless. However, she fails to craft a clear test that would determine how far the standard of review should extend. She is correct, however, that a judicial check is necessary for the clauses to actually protect a right of individuals against government infringement. This begs the questions: what is a “public purpose,” how do we define “just compensation,” and, furthermore, how far should the (“strict”) standard of review extend? I will begin to tackle these questions in the order presented.

BRIAN WAGNER

In the interest of preserving and defining both individual rights and legislative authority, it seems vital that the courts not make positive prescriptions defining “public purpose.” More concretely, I agree with the Court in Kelo that it is not up to the judiciary to define what is in the public interest, but it is appropriate that the courts ensure that that interest is public, for if it were private, the possibility exists that individual rights are being infringed upon in order to disproportionately benefit another private party. Therefore, the courts may, and should, create only negative limits concerning the legislature's exercise of the power of eminent domain. These negative limits would preserve broad legislative authority while protecting legislatures from what might otherwise be worthy of suspicions of favoritism and violations of constitutional rights. I will return shortly to what these negative limits ought to be.

In defining “just compensation,” we must take into account the possibility that monetary compensation may sometimes be inadequate and thus an unjust compensation. In “specific performance actions,” for example, mere money damages may be deemed to inadequately compensate a real estate buyer for the seller's breach of contract if the property is “unique” (historic, for example). Property is not untouchable under the Fifth Amendment, as we have seen, but even when property is condemned, the opportunity to own property must be retained. If seizure will result in the inability to regain ownership of some comparable property, despite monetary compensation, then that monetary compensation is unjust.

In order to practically define public purpose and just compensation to create some accountability at the level of the legislature, as well as to define more clearly the limits of judicial scrutiny, I would propose a test to determine whether a legislature's actions have satisfied the requirements of the public use and just compensation clauses where property is to be transferred from one private entity to another. The test revolves around four negative limits based upon the principles laid out above:

First, there must not be a benefit only to a select class of people or to select individuals. This will rule out the favoritism that would forbid a legislature's openly meddling in the private sphere, with relation to property. Whether “class” is taken to mean a group of a certain political preference, geographical location, or other category, the intention must be to benefit the larger community as a whole. To clarify, I argue (without qualification, in the interest of space) that lifting people out of poverty, destitution, or difficult living situations certainly is a social function and can be justified as such; therefore, such a justification for a seizure of property, as long as the harmed individuals are justly compensated, is proper under this part of the test. In Kelo, the legislature's intent, as gleaned by the Court, is to stimulate economic development in the area with the goal of an increase in tax revenue and creation of new jobs. Whether their plan is prudent and will be effective, I agree, is not the concern of the Court. More than a select class (specifically, the general public of New London) is meant to benefit from the policy.

Second (and related), the persons harmed, or those whose property has been condemned, must not lack an interest in the result of the policy. This requirement fundamentally asks whether the persons whose property has been seized are intended to benefit from the project as members of the community. If they lack an interest in the result of the policy, even an abstract interest, then this is an indication that the policy is not intended for a truly public purpose. The petitioners in Kelo did not object to economic development in the area, yet they contend that such development does not constitute a public purpose. This appears to amount to little more than “I support this public policy as long as I do not have to sacrifice anything for its implementation.” This test is meant to ensure only that constitutional rights are not sacrificed. The petitioners did not deny that they, as members of the general public of New London, have a reasonable interest in the city's economic revival. The ultimate test to see whether the sacrifice demanded of them is unduly harsh will come in the fourth element of the test.

Third, the legislative body must not be remote to either the taking or the public use justification. If the governing body is remote, or not sufficiently connected with the community in which the seizure is taking place, it is less likely that the affected communities and individuals had any say in the policy's formation, making it, in turn, less likely that the body has the consent of those affected. In Kelo, this part of the test is relatively straightforward; the city's development agent is not remote from the petitioners, who are residents of the city. Consideration of this aspect of the test might be more nuanced in other cases. For example, the Empire State Development Corporation, a development agent of New York State, not New York City, and the agent with which Columbia has had dealings requesting consideration of the use of eminent domain in Manhattanville, might be considered remote from the community in which the seizures would be taking place. The members of Community Board 9 would probably make this argument.

The fourth element of the test is the question: is the compensation really just? In the cases with which I am primarily concerned in this piece, namely those that could disproportionately affect people in poor and minority communities negatively and/or violate individual rights, it is vital that the opportunity to own property must be retained if the compensation is to be considered just. The right to private property, while contingent, is also, I argue, fundamental in the descriptive sense. In other words, in a society in which property is the basic unit indicating individual economic security, the right to private property must be considered, and is, fundamental, for those deprived of property would be hard-pressed to maintain a decent living. This is why compensation must, in order to effectively prevent the violation of a right, provide the harmed individual with the opportunity to have a comparable living situation to that which he had previously. Whether the city of New London's compensation was just was not questioned by the petitioners in Kelo, indicating that the compensation would be just in circumstances in which the petitioners would consider the takings legitimate. This indicates that the opportunity for ownership would not have been undermined in this case. The petitioners acknowledged both that they have a reasonable interest in the result of the policy and that monetary compensation would be just if the takings were legitimately public. Since they have a reasonable interest in the result of the policy, the taking satisfies the requirements for a constitutional taking. Since the petitioners ceded that in the case of a legitimate taking the monetary compensation offered would be sufficient and just, and the seizure satisfies the takings clause, then the action of the city legislature appears to satisfy the compensation clause as well. Had the residents raised the question of just compensation, it may have had merit depending on the facts as elucidated.

There will always be a conflict between public and private considerations when reflecting on the authority of legislatures. Legislatures are bodies representative of a larger community of people with a common, public interest in the well-being of society as a whole, but they are also collections of individuals with strong personal convictions and interest in retaining political power. As a progressive, I firmly believe that the authority of legislative institutions should be defined such that while the danger of abusing individual rights is always subject to review by the courts, the legislatures' vital role in furthering the public interest is emphasized and allowed to flourish. Of course, working toward a solution to the dilemma surrounding the legal issue of eminent domain can only scratch the surface of providing a clear vision of a legislative authority that is inoffensive, yet free and predominant. As progressives, particularly, we should feel the responsibility to assert public authority, but still be unafraid to demarcate its limits.