Sunday, March 14, 2010

I'm Glad It Happened. But Never Again

A couple of last thoughts on the Nets move to Brooklyn, and the use of eminent domain to provide the land where the Nets will play.

Do I think the use of eminent domain in this instance is unconstitutional?

Yes I do. The fifth amendment is clear on this. If the government takes your property against your will (and compensates you for doing so) it has to be for a public purpose. It's straightforward: if the government takes your house because it wants to build a highway-that is a legitimate use of eminent domain. A highway is used by the public. It passes constitutional muster. But to take private property -against the will of the owner- and turn that property over to a private developer to build an arena, some office towers and apartment buildings? That surely does not meet the public use requirement of the takings clause of the 5th amendment.

So why have the Courts not stopped this unconstitutional land grab?

Because the Supreme Court has waterdowned the definition of "public use"- there really is no distinction between public & private use. If a property or area is defined as "blighted" the Supreme Court says its OK to take that land and hand it over to a private developer. In 2005, in the New London case, the Supreme Court extended the use of eminent domain even further to include "non-blighted" property. The New London case is scary and should be overturned ASAP. In New London, the city of New London used eminent domain to turn private property over to the pharmaceutical company Pfizer. Was the area "blighted"? No. So why was New London allowed to take the property? New London said that turning the property over to Pfizer would create more tax revenue for the city. And that was enough to meet the public use requirement. And the Supreme Court, in a 5-4 decision, agreed with that rationale.

Bottom line: after New London, if the federal, state and local governments want to take your property, all they have to show is that the property will generate more taxes once they take it.

Like in so many other areas, when it comes to eminent domain, the Supreme Court has made horrible decisions that subverts the meaning of the constitution. If the Supreme Court did its job, NYC would never have been allowed confiscate privately owned land and turn it over to a private developer to build an arena for the Brooklyn Nets to play in. It never should have happened.

I don't understand. If you say its unconstitutional, how can you support the use of eminent domain in downtown Brooklyn?

I support it because I am a hypocrite. My desire to see Brooklyn have a professional basketball team outweighs the undeniable fact that in order to achieve that goal, the constitutional rights of many fellow Brooklynites were trampled upon. I know I am wrong to support it, but I still do.

Here is what I would love to see happen: Once the arena is built, and Lebron scores the first basket for the hometown team, I want the Supreme Court to overturn New London. I want public use to mean public use. Not private use. What happened in Atlantic Yards should never happen again. To anybody.

But I'm glad in happened in the first place.

But never again.


David Garza said...

Big Al . . . thanks for the birthday present . . . I think you've given me one of my favorite all-time quotes "What happened in Atlantic Yards should never happen again. To anybody.But I'm glad it happened in the first place.
But never again."

Chris said...

Even where utility "takings" are concerned, today's interpretation of the "public good" in eminent domain is corrupted. And there is a lot of play in the "just" of just compensation.

You mention "Kelo" -- it was the excellent Institute for Justice (IJ) that appealed Kelo to the Supreme Court. Unfortunately, IJ declines to intervene in energy/utility "takings" because, they told me, of the "public good" premise.

New York and Pennsylvania, among other states, will see more eminent domain "takings" -- and it won't be for a aports complex. It will be driven by the rising interest in natural gas drilling in the gas-rich Marcellus Shale. With more drilling comes more pipelines and more underground gas storage fields -- and that (pipelines and storage fields) always means eminent domain.

But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for a 12-billion cubic feet underground gas storage reservoir led to the development of a website which has begun to attract whistle blowers inside the energy industry.

We are collaborating and helping property owners in many states. For info, visit the site:

By the way, our new neighbor, Spectra Energy, has received two Notice of Violations for "unlawful conduct" related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

The ripple effects of eminent domain are never over.

Alex Baldman said...


Happy birthday, bro. And many more. Thanks for taking the time to read & write.

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