Lindsey Weinstock

The recent Supreme Court decision of Kelo v. City of New London (2005), 162 L. Ed. 2d 439, has been widely criticized by conservatives as an attack on the right to private property by the liberal wing of the Court. In the case, residents of New London, Conn. objected to the condemnation of their property by the city, which had utilized its power of eminent domain to seize the property and transfer it to Pfizer, which would build a plant on the condemned property. The residents claimed that this represented an unconstitutional exercise of the power of eminent domain under the fifth amendment. The amendment states that “private property [shall not] be taken for public use, without just compensation.” The New London residents argued that their property was not taken for “public use,” since the property was transferred to another private entity whose objective was profit, not service to the public.

The majority opinion, delivered by Justice Stevens, asserts that 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 majority maintained that a deferential standard of review should be applied in that the legislature had justified its takings by asserting that economic development as a public purpose could be stimulated by the property transfer. The Court declined to go into a lengthy review of the merit of this claim; 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, their exercise of eminent domain was constitutional because it was for a public purpose in the eyes of the legislature.

Certainly, though I have simplified the arguments for the sake of brevity, the decision is problematic for progressives as well as for conservatives. The latter have concentrated in their critiques on the assertion of private property as a fundamental right - that private entity A's property can in no instance be transferred by the government to private entity B because the government would be favoring B over A and simultaneously depriving A of what is rightfully his. Admittedly, the conservative argument has intuitive appeal to the progressive mind-set in this case, because in Kelo, the government transferred personal property, some of which had been family homes for generations, to a large and powerful corporation, and the benefit to the community, especially considering the price paid by some of its residents, was and remains unclear by many accounts. Still, it is also natural for a progressive to question the fundamental nature of the right to private property.

As progressives, we believe in public benefits, environmental regulations, and other social welfare policies that conservatives argue undermine the right to private property. In arguing for these policies, we assert that property is a contingent right, not an absolute one. Yet, it is not hard to see, especially in light of the Manhattanville controversy, that government's exercise of eminent domain could have an unfavorable impact upon poor and minority communities, which have the least say in policymaking. It can be argued that the Kelo decision licenses policymaking that results in such impact, but that the decision's intent was nevertheless to assert the progressive principle of allowing government to redistribute for public purposes. This presents a dilemma for progressives: if we follow Kelo through to its logical conclusion, those with less political power may be adversely affected; on the other hand, if we base a legal interpretation of the fifth amendment solely on the right of individuals to be secure in their property insofar as they are using it in a way that does not harm others, then arguments for environmental regulations and public benefits are undermined. In this piece, and its continuation in the second issue of AdHoc, I will define more clearly this dilemma that the Kelo decision has brought to the fore, and contribute to the discussion of how we can try to form a coherent solution that could unify our approach to property rights.

The practical questions at the center of this dilemma are how far a legislature's power of eminent domain should extend, and to what standard of review the courts should be entitled concerning questions of legislative intent as it relates to acting with a “public purpose?” How can we reconcile governmental obligation to act on behalf of the general public (and the subsequent contingency of the right to private property) with respect for individuals and their constitutional right not to have their property seized without justification and compensation?

The most extreme argument goes too far in asserting the fundamental nature of property rights. The argument claims that the government's activities may extend only sofar as they do not infringe on the rights of individuals. Indeed, this seems to be an acceptable reading of the fifth amendment as a whole. Assertions of the rights of the accused are included alongside the eminent domain takings and compensation clauses; both the prosecution of crimes and the carrying out of public policy involve actions taken by the government on behalf of the general public. The argument can also be reversed: the rights/freedoms of individuals only extend up to the point after which the public in general or other individuals are hurt. This is a common theoretical justification for environmental regulations, for example; individuals' (or corporations') right to use their property as they see fit does not extend to the point where their use of that property has an adverse effect on other individuals or the general public.

When these two sides of the argument are combined, the result is the power of eminent domain: the government ought to further the public good unless its efforts infringe upon the fundamental rights of the individual. To the advocates of this argument, private property is such a right. This argument, then, only justifies a standard of review that determines whether the condemned property had been harmful to other individuals or the community in general, the implication being that the government has the authority to condemn only harmful property. In other words, legitimate government takings for use by the public or for a public purpose, such as setting up low-income housing, community centers, homeless shelters, or even public schools, bridges and roads, may not be authorized because the property that would be used for these projects would have to be blighted in order for the taking to be legal. It is easy to see how this argument could severely limit the power of the government to provide public services.

The other argument, which is the argument of the Kelo majority, allows what is “public purpose” to be determined solely by the legislature; if its intent can be reasonably argued to have been in the public interest, then the courts should not question this intent. Justice O'Connor, in her dissent, makes a compelling argument by writing that if exercising eminent domain in this manner can be constitutional, then any transfer of property, as long as the legislature justified it by saying it was for the public benefit and demonstrated some abstract public benefit that might arise from the condemnation (for instance, New London asserted that there would be higher tax revenues), could be constitutional. Furthermore, she writes, “were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning.” Kelo at pp. 462-3. She does not, however, come up with a clear test to determine how far the standard of review should extend. Indeed, she grapples with the question but ultimately rejects her ruminations altogether in favor of going back to a reading of the fifth amendment that asserts that only blighted private property can be condemned. She qualifies this assertion by writing that even this type of taking must be for a public purpose — but in what does “public purpose” consist? She never answers this question, despite her criticism of Justice Kennedy for neglecting this same question in his concurring opinion.

This defining of a clear standard of review to determine whether the takings and compensation clauses have been satisfied is the main difficultly. The creation of such a standard must involve a more comprehensive conception of the meaning of “public purpose” and “just compensation.” If we are to assert the value of “individual rights” or “human rights,” they must have clear delineations such that particular cases do not produce a dilemma with regard to whether we should value one principle over another, when they seemed before to be equally vital to a just society. The principles at stake in the Kelo case and the Manhattanville controversy for progressives — those who believe in respect for the individual as well as in social policy — are the authority (and, indeed, the obligation) of the government to redistribute some resources for public purposes, and the individual right to property.

I am of the opinion that these principles are reconcilable, despite the possible negative impact of government redistribution policy upon society's marginalized populations. In other words, the rights of individuals who live in less-powerful communities can be protected, and the needed authority of the government to redistribute can be simultaneously sustained if “public purpose” and “just compensation” can be conceptualized in a way that is consistent with both individual freedoms and government authority. I believe it is imperative for progressives to resolve this dilemma in order to unify our philosophy and effectively and convincingly advocate for just public policies. In my next article on eminent domain and the progressive dilemma, I will argue how it might be possible to conceive of public purpose and just compensation such that an objective standard of review can be defined in order to create some accountability at the level of the legislature.