Through the Looking Glass of Eminent Domain: Exploring the Arbitrary and Capricious Test and Substantive Rationality Review of Governmental Decisions

The day-to-day realities of different systems of government can be discerned in the way they handle, in theory and practice, clashes between the individual and the collective will. The structure of contemporary American democracy is no exception. It is comprised of a variegated assortment of judicial formulae for balancing the interests of the individual and the state, most of these formulae tracing back with differing degrees of directness to textual bases in the first nine amendments to the federal Constitution or their state constitutional equivalents. One of these basic structural balancings, encountered early on by every student of American law and government, is the vague limitation against “arbitrary and capricious” acts of governmental power. The arbitrary and capricious test is a fundamental, but usually rather superficially considered, concept of limits upon state actions. Modern eminent domain law presents drastic and recently resurgent questions about the permissible limits of public power over private rights, and therefore invites, necessitates, and facilitates a clarification of the arbitrary and capricious test. This Article, then, is straightforwardly schizophrenic, developing two different though linked inquiries. The analysis presented here requires a synthesis of two theoretical propositions: (1) that the arbitrary and capricious test can be clarified into a defined and judicially workable concept of substantive rationality review, and (2) that, if fifth amendment protections for private property rights in eminent domain cases are to be meaningful, the courts must be open to practical application of a clarified arbitrary and capricious review in state and federal condemnations. This Article attempts to explore and clarify the substantive inquiries into governmental actions represented by the “arbitrary and capricious” concept, integrating these observations with the recent debate over rationality review, and applying them to the narrow but illuminating field of eminent domain