Academic journal article Fordham Urban Law Journal

Condemning the Decisions of the Past: Eminent Domain and Democratic Accountability

Academic journal article Fordham Urban Law Journal

Condemning the Decisions of the Past: Eminent Domain and Democratic Accountability

Article excerpt

Introduction

I.   Entrenchment by Another Name

II.  Eminent Domain in New York

     A. The Built Environment
        1. Rejuvenating Times Square
        2. Reclaiming the Waterfront
     B. Vested Rights
        1. Reinventing Taxis
        2. Rethinking Inlet Park
     C. Critical Assets
        1. Selling Parking Meters
        2. Moving Prisoners
III. Evaluating Eminent Domain

INTRODUCTION

Eminent domain represents a critical and contested point of intersection between government power and private property rights. As debates over eminent domain have leapt from the pages of academic articles (1) to legislatures (2) and even to popular culture, (3) the battle lines have largely crystallized. Most people now seem to agree that eminent domain, for better or worse, is primarily a tool for the government to use to assemble property and overcome holdouts. (4) In this Essay, I argue that an entirely different interest is also at stake. Eminent domain serves an important structural role in American democracy--ensuring that governments are not bound by the policy choices of their predecessors. (5) In this account, eminent domain is a tool for acquiring not just property, but also democratic legitimacy.

It is a core principle of democracy that one government is not allowed to make policy choices for future governments. (6) Democratic power requires that a representative government be responsive to the will of its own constituents, not the constituents of the past. For that reason, legislatures are not allowed to pass unrepealable legislation, and constitutions contain mechanisms for amendment. (7) Despite the prohibition on entrenchment, as it is usually called, governments have many tools at their disposal to propel their policy preferences into the future. (8) Among the most powerful but least theorized are those that rely on private rights. Long-term government contracts, physical developments, and property conveyances in many forms can lock in policy preferences beyond a single legislative lifecycle. (9) Faced with incorporeal and physical manifestations of past policies, eminent domain is an important tool for subsequent governments to de-entrench those preferences, buying back policy control from the past.

This is not just abstract political theory. Indeed, viewed through the lens of entrenchment, New York provides ready examples of eminent domain's role in changing policies adopted by previous governments. This Essay examines some of those examples, and also current policies that future governments might need eminent domain to undo. This Essay therefore highlights a seldom-explored role for eminent domain: preserving the ability of New York's elected representatives to respond to the will of the people.

I. ENTRENCHMENT BY ANOTHER NAME

Eminent domain plays no obvious role in traditional debates about legislative entrenchment. Entrenchment, as typically conceived, refers to unrepealable legislation--that is, public laws that are binding into the future. (10) Eminent domain is irrelevant in that context. But entrenchment concerns should not be so narrowly construed. Indeed, the concerns animating prohibitions on entrenchment apply far more broadly than just to unrepealable legislation, and once the range of entrenching government actions is expanded to include commitments made through private law, the importance of eminent domain is easy to see.

In political science terms, anti-entrenchment rules are about preserving sovereignty and democratic accountability. A genuinely democratic government must be able to respond to the will of its constituents, and that means today's constituents, not yesterday's. (11) There can be no democratic accountability--indeed, there can be no sovereignty--if the power to act has been captured by a previous government. (12) Imagine a state passing a meta law declaring that it, and all other existing laws, could never be changed. …

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