Tuesday, November 10, 2009

Judicial Review of Atlantic Yards Corruption: Laws Should Not Be A "Dead Letter"

(Alexander Hamilton)

Alexander Hamilton has been on our Noticing New York mind recently. Hamilton, is the most notable of all our founding fathers for two things: a love for the honor of adhering to principle in the face of politics and an attentiveness to the detailed mechanics of what makes our public institutions work. It is probably thematically fitting that the opponent who killed him in a duel, Vice President Aaron Burr, was a politician who was involved in the founding of what became Tammany Hall and whose interest in pubic service was suspiciously regarded* as being for the pleasure of making personal profit rather than an interest in principle. Hamilton, a prolific writer, authored a quote of a certain minor fame that you can get adorning T-shirts and coffee mugs. That quote has got us to thinking recently. The quote: “Laws are a dead letter without courts to expound and define their true meaning and operation.”

(* Burr’s “The rule of my life is to make business a pleasure, and pleasure my business” is widely quoted. We are not sure, however, what PBS’s American Experience used as a basis to put in Burr’s mouth the words: “Compared to the drudgery of the law, the life of a politician is honorable, fun ... and very profitable.”)

The Federalist Papers and Atlantic Yards: The Need For Court Review That is Not Illusory

Hamilton’s quote: “Laws are a dead letter without courts to expound and define their true meaning and operation” is from the Federalist Papers No. 22, the Federalist Papers being those collected newspaper articles in which Hamilton, James Madison and John Jay pseudonymously argued why the Constitution and its incorporated principles should be adopted. (All of the Federalist Papers were addressed “To the People of the State of New York,” New York being Hamilton’s home state.) We were thinking about this quote in regard to the proposed Atlantic Yards megadevelopment and the various litigations that have been brought to stop it. We have been thinking of the quote in relation to the obligation of the courts to stand up and assume their responsibility to act like courts and give meaning and effect to the law by stopping Atlantic Yards.

We have previously written about the increasing predilection of public development officials to disregard laws for political motivations, encouraged by the feeling that they can do so with impunity. We have also written about how whatever initial doubt might once have existed about their support of Atlantic Yards, public officials such as Mayor Bloomberg and Governor Paterson have long since by their own actions outed the truth that their support for the megadevelopment is corrupt, a commitment to a wired deal abusing eminent domain to give developer Forest City Ratner a no-bid mega-monopoly on a swath of valuable Brooklyn real estate, no matter the harm or absence of public benefit. Laws and fundamental rights are clearly being violated: The only question is whether the courts will let those laws become Hamilton’s “dead letter” by deferring to a fictional version of reality conjured up by governmental officials wherein by pretense and pretext those government officials feign that they have not violated the law and all its basic principles.

If the courts supinely succumb to whatever manufactured fictions public officials trump up as a pretext to steal private property through eminent domain abuse then they have, in essence, abdicated their function out of existence and we are left, for all intents and purposes, without courts or law.

The Importance of an Independent Judiciary Historically Recognized

An active independent judiciary was considered quite important at the time that Hamilton was writing and that is partly why he wrote the words we quoted. Courts that can do no more than simply mirror what the executive branch wants do not supply that. When he argued for the adoption of the Constitution Hamilton argued for an independent judiciary that could stand up to the executive, but the idea of an independent judiciary already had deep historic roots. The tradition of judicial independence was a principle honored in England and the idea that it wasn’t being honored in America was something the colonists took offense at when they drafted the Declaration of Independence.

We found a paper by the American College of Trial Lawyers, Judicial Independence: a Cornerstone of Democracy Which must Be Defended, which provides an excellent resource on the historical origins of the principle of judicial independence. The principal draftsman of this paper was Robert L. Byman, FACTL, Jenner & Block, LLP, Chicago, Illinois.

Here is what that paper has to say about judicial independence as written about in the Declaration of Independence:
A century before Lord Acton was to utter in Parliament his famous phrase, “Power tends to corrupt, and absolute power corrupts absolutely,” our forefathers already knew that it was essential to divide and separate the powers of government.

Of all the grievances detailed in the Declaration of Independence, none was greater than the total dependence of Colonial judges upon King George:
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
Declaration of Independence, July 4, 1776.

English judges were assured life tenure during their “good behavior” by the Act of Settlement of 1700, but their Colonial counterparts served at the pleasure of the King. Their salaries were subject to his whims. Judges beholden to the King, not surprisingly, often ruled as he pleased, no matter how unfairly. Our post-Revolution government needed to ensure an independent judiciary.
Independence Means More Than Appointment for Life and Salary Protection

Much of the thinking of what is necessary to constitute an independent judiciary is based on judges not serving at the will of the executive and similarly that their salary and compensation should not be at their whim. Here we are going to talk about something only a shade removed in terms of concern, judicial independence in terms particular to modern New York State-style eminent domain abuse: That courts are not independent if they are not entitled to engage in fact finding, if the public officials politically in power tell the courts that eminent domain takings cannot be subject to standard and traditional adversarial truth-finding processes for discovering and determining facts, and that there is no judicial independence if a court must simply accept as its record of facts a set of fictions whipped up the same government in power that is seeking to act without restraint by law or the courts.

Independence Before the Declaration of Independence

(Charles de Secondat, baron de Montesquieu)

Before the Declaration of Independence was written the influential Baron de Montesquieu (1689 - 1755), a nobleman and a judge in a French court, was tackling the subject of judicial independence in his The Spirit of the Laws (1748). The College of Trial Lawyers paper also quoted him: “There is no liberty, if the power of judging be not separated from the legislative and executive powers.”

At the risk of being pedantically boring, here is a longer extract containing that quote:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

There would be an end of every thing were the same man, or the same body, whether of the nobles or of the people to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals. “
Hamilton was a reader of Montesquieu and said that he agreed with exactly the same quote seized upon by the College of Trial Lawyers paper.

Checks and Balances: Human Beings Are Not Angelic and Government is Obliged to “Control Itself”
(James Madison)

We now think of the Constitution as a system of “checks and balances.” It is, but at the time this concept was being argued for it hadn’t been reduced to that frequently used catch phrase. Although Hamilton clearly understood why checks and balances were necessary and argued for them, it is James Madison who is credited with giving the most classic essay in the Federalist Papers on why checks and balances are necessary in government. He does so in terms of pointing out basic human nature, that human beings are not angelic and that therefore government by such nonangelic beings must be obliged to “control itself.” Here is what he says in The Federalist No. 51 (emphasis supplied):
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
(It should perhaps be noted that the authorship of this essay is officially recognized as “disputed” and, as such, is sometimes attributed to Hamilton although most scholars consider that it is assuredly Madison’s.)

The Proof is In Atlantic Yards

If one has any questions about what the “human nature” Madison euphemistically refers to might look like in action when government does not feel obliged to “control itself,” one can see a stunning “reflection” of what we would less euphemistically refer to as base human greed by looking at the Atlantic Yards mega-project. The list of abuses for the sole sake of the developer is endless.

Inherently Feeble Courts Need to be Independent

Hamilton’s eloquent quote, “Laws are a dead letter without courts to expound and define their true meaning and operation” was tossed off in The Federalist No. 22 (a continuation of the essay Hamilton started in The Federalist No. 21) where his principal subject is another balance of powers question, the states giving up powers to the federal government. In connection therewith he argues for a federal judiciary so that there may be a “sanction to” the laws of the United States, such as treaties. It is actually in a series of six later essays on the judiciary (Nos. 78-83), beginning with and particularly The Federalist No. 78, that he argues for the judiciary’s independence as an essential part of its being effective.

Hamilton found himself walking a line in his arguments as he tried to sell the Constitution in his writings. A judiciary that was too strong and by being separate was unaccountable was feared, so he argued simultaneously that the judiciary would actually be relatively weak compared to the other branches of government but that it needed to be independent to be sufficiently strong to carry out its purposes.

In the paragraphs below, Hamilton argues that a separate judiciary would be the weakest branch of government while concurrently arguing (by invoking the Montesquieu quote mentioned above) that a judiciary that is not “truly distinct” from the other branches of government, or that forms a “union with either of the other departments,” presents a situation where there is “every thing to fear” because as Montesquieu says there would be "no liberty” in such a situation.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
Also notable above is the way that Hamilton describes the temperamental tightrope courts walk which may cause them to be less assertive than they ought. Simultaneously, the judiciary must be conservative, exercising “all possible care is requisite to enable it to defend itself against their [the other two branches’] attacks” while “notwithstanding a nominal and apparent separation” the judiciary must also be concerned that given its “natural feebleness” it is “in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

Rights of Individuals Against “Designing Men”

Hamilton then goes on strengthening his arguments that the judiciary must be independent so that it can, among other things, protect the “the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves.” It is hard when reading Hamilton’s arguments not to endow him with a prescience about the kind of abuses we would see with the pursuit of the Atlantic Yards and the Columbia expansion that takes over West Harlem.

“Cabals of the Representative Body,” Majorities and Fundamental Rights

When Hamilton was writing he was speaking of a not-yet-adopted Constitution which he himself would argue did not need to have a Bill f Rights appended to it. He makes the point, however, that constitutional provisions should NOT be overturned by “cabals of the representative body” even “where legislative invasions of it had been instigated by the major voice of the community.” (We have pointed out a couple of things relevant to these concerns in cases such as Atlantic Yards: First, that it would be improper for the Fifth Amendment and other constitutional protections of individuals to be annulled by laws backed a majority of the people and, second that Atlantic Yards is not supported by a majority of constituents on a one-man, one-vote basis; it is instead supported by the “money constituency” of a developer making financial contributions to politicians. The Federalist Papers in their thoroughness do not neglect to deal with such political problems and the need to have checks and balances against bribery.)
Hamilton says that even though it may take judges with “an uncommon portion of fortitude” to stand up against such incursions they should not be permitted “until the people have, by some solemn and authoritative act” amended the Constitution (as he acknowledges the people have a fundamental right to do). See below (emphasis supplied):
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
Meaningful Judicial Review as Encouragement of Good Government Character via the Scrupulous Check on Unjust Partiality and “Iniquitous Intention”

Hamilton’s next paragraph can also readily be applied to Atlantic Yards when it speaks about the need for the judiciary’s firmness in protecting against “unjust and partial laws” and also when he suggests that fortifying an interventionalist temperament on the part of the “judicial magistracy” will operate as a check on the “iniquitous intention” and “sinister expectations” of the legislature in passing laws. Hamilton argues this is because the legislature will perceive “obstacles” to success in their nefariousness if they expect “the scruples of the courts” are to be applied. He suggests that the likelihood of court intervention will have a beneficial “influence upon the character of our governments” and moderate mischiefs because of the anticipation that judicial review will be in “a manner compelled, by the very motives of the injustice they meditate.” In other words, ill motivation will be looked at and the more that such injustice is intended by a governmental act the more likely it is to be overturned. By contrast the Empire State Development Corporation’s lawyers want there to be a very high bar to the examination of that agency’s pretextual motivations when it abuses eminent domain.

Hamilton is, of course, talking about the legislature in his last paragraph above, while in the case of situations like Atlantic Yards the ill-motivated and pretextual actions in question are being taken by public authorities, not by the legislature, per se. Public authorities, something Hamilton didn’t envision, are more analogous to the executive branch but Hamilton’s admonitions still apply fittingly. Further, the theory pursuant to which public agencies like the Empire State Development Corporation are exercising eminent domain is that the power of legislative eminent domain determinations have been delegated to the ESDC by the legislature, thus making this analogy all the more apt.

Here is what Hamilton says:
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Impartial Adjudication of Laws Because the Tables May Turn

Note that Hamilton concludes this paragraph talking about the importance that there should not be distrust about whether the laws are administered virtuously and disinterestedly because “no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.” This is something to which we shall return before we conclude this piece. It is relevant to the way that it is perceived that eminent domain is currently used exclusively in favor of developers in the “big developers” club, like Forest City Ratner and never used against such developers. For instance, eminent domain is not being used in the case of Joe Sitt’s Thor Equities, which has been speculating on land in Coney Island, or against the Dolan family, who were unwilling to accommodate the improvement of the new Penn (Moynihan) Station design by moving their Madison Square Garden arena, with the public building them a new one.

Lack of Review Generates Corruption Revisited: The Fallacy of Confusing Hoped-for Conduct From an Office With Those who Occupy It
(John Dalberg-Acton, 1st Baron Acton)

Hamilton’s thesis that absence of review generates a higher level of corruption was essentially adopted by Lord Acton when, as quoted above in the American College Lawyers, piece he made his famous statement “Power tends to corrupt, and absolute power corrupts absolutely.” Acton was at the time arguing against adopting a doctrine that the Pope was infallible. Our courts in the case of the Atlantic Yards litigations do something similar to making the Pope infallible when they bend over backwards, as they now do, to defer to public officials even in the face of extreme evidence that those officials are abusing their office. It is a similar error for them to endorse procedures that prevent evidence to this effect from becoming part of the record and a basis for their decisions.

Another Lord Acton quote that is quite famous ends Acton’s famous the “power corrupts” paragraph and it is quite appropriate in its ridicule of the notion that human beings acting with unchecked power should be confused with the good conduct we only hope for from the offices the occupy: “There is no worse heresy than the fact that the office sanctifies the holder of it.” Here is the longer passage from Acton’s famous letter:
I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it.
Human Folly, Wickedness and Depravity: The Deep Skepticism of the Founders

As can be observed from what we have already quoted above, the Founding Fathers had a dependable skepticism about human nature that cropped up in almost all their considerations of the proper institutional mechanics of government they were considering. Here is Hamilton once more near the end of his easy (Federalist No. 22) on the quality of the men who might be appointed as judges. He speaks of how the “folly and wickedness of mankind” necessarily make our laws voluminous and how few there are who will be fit to be judges given the “ordinary depravity of human nature”:

It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

We cannot help but contrast this realistic skepticism and caution with the fatalistic tendency of New York courts to defer to the determination of public agencies behaving pretextually and politically as if government officials are presumably the angels which Madison in his essay told us that human beings are not.

Skeptical Enough For a Bill of Rights?

As skeptical as Hamilton was, he could have been more so. Apparently the rest of the Founding Fathers were. This raises one matter where we, with the benefit of hindsight, find ourselves agreeing with the rest of the Founding Fathers as opposed to Hamilton. In The Federalist No. 84 Hamilton argued that no bill of rights was necessary, that the Constitution itself would afford sufficient protections of liberty for the individual. We think that history has proven how essential the Bill of Rights (the Fifth Amendment containing protections against eminent domain abuse) ultimately were.

Hamilton’s argument presupposes that unless the federal government is granted a power in the Constitution specifically to do so, it should lack the power to restrain any liberties one might enumerate in a bill of rights.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
The Presumed Right to Liberty in Hamilton’s Own New York State

Hamilton is talking about the federal government and Atlantic Yards is a situation where property rights are being trampled upon by the state, but given Hamilton’s philosophy he would probably be very surprised at the way that eminent domain is being abused in New York because he appears to presuppose that the states similarly do not need bills of rights to avoid abuses. In arguing that a federal bill of rights is not necessary, he early on observes that as of the time he is writing “the constitutions of several of the States,” New York among their number, contain no bill of rights. Would Hamilton observing the conduct of our present day New York officials conclude that the abuse in New York has ironically been made possible, as he suggested above, because the insertion of a bill of rights protections against eminent domain abuse in both the United States and the New York State Constitutions has thereby done the opposite and afforded “a colorable pretext to claim more than were granted”?

Not Only Forethought: Washington’s Farewell Address
(George Washington)

The concern for separation of the departments was not merely forethought before the Constitution was adopted. Vigilance to preserve separation was a concern of the Founding Fathers after the Constitution was adopted. They understood that the usurpations consolidating power in one branch of government can be insidious. Let us now invite Founding Father George Washington into the conversation. About the separation of powers he said: “To preserve them must be as necessary as to institute them.” This is from Washington’s 1796 farewell speech in which Washington also said, “The spirit of encroachment” “tends to consolidate the powers of all departments in one, and thus to create, whatever the form of government a real despotism.” To be fair, we are back to Hamilton again because Hamilton provided Washington significant help in writing the speech. Here is the pertinent excerpt at length:
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
Here are some of Hamilton’s notes about how insidiously the Constitution can be vanquished, which he made when he was preparing Washington’s speech:
One method of assault may be, to effect alterations in the forms of the Constitution tending to impair the energy of the system, and so to undermine what cannot be directly overthrown. In all changes that you might be invited remember that time and habit are necessary to fix the true character of governments as of any human institution; that experience is the surest standard by which the real constitutions of government can be tried . . .
A Modern Boiling Down

These days we are many years removed from the era when the nation was founded and we tend to get these same precepts that the founders struggled with in much simpler, boiled down terms. The American Bar Association Standing Committee on Judicial Independence provides this on its website:
What is Judicial Independence?

* * * *

Ours is a government of laws, not men. The rule of law is a fundamental concept of our government. It allows all our citizens to enjoy the liberty and freedoms promised by our state and federal constitutions and protects against tyranny of the majority. By interpreting state and federal constitutions, the judicial branch checks the will of the legislature and executive, to ensure that all citizens, whether part of the majority or not, are allowed equal access to all rights and liberties guaranteed them.
A Vintage Monarchical Boiling Down
(Louis XIV of France)

Louis XIV’s boiled down the concept of a government of laws vs. a government of men even more succinctly with his famous statement: “L’Etat, c’est moi” (“The state is me”). If the courts do not assert themselves, that is what you are left with when it comes to the law and whether its spirit or letter will be observed. Without meaningful intervention by the courts the state agencies simply respond, “We are the state, you must defer to us.” This is not what one wants to hear when confronted by a government that wants to take your property through eminent domain for pretextual reasons to benefit a politically connected developer.

What Would the Founders Think of the Atlantic Yards Mega-Monopoly?
(John Adams)

What would our Founding Fathers think of the proposed Atlantic Yards megadevelopment which is clearly not intended to benefit the public* and is principally an excuse to give a developer a mega-monopoly on a 30+ acre swath of valuable Brooklyn real estate, excluding all other competition.

(* No public benefit analysis has been done by the agencies pushing the project forward and to the extent that anything is known, the arena, the only part of the megadevelopment actually proceeding and for which a deal on benefits exists, will be a $220 million net loss to the public.)

(Above: A rendering of the Atlantic Yards arena, suspect for many reasons.)

We think we know what the founders would think. It is time to quote John Adams, the Founding Father who succeeded Washington as president. (Jefferson came next and we have already quoted James Madison who came after that.) Like Hamilton, Adams was a member of the Federalist party though that party was in the end put asunder by an unfortunate feud between Hamilton and Adams. Our Adams quote comes to us courtesy of the new Michael Moore film, Capitalism a Love Story, which brought it to our attention. The quote appears during the roll down of the film’s final credits together with quotes by Jefferson and Franklin). What did John Adams say that answers the question on Atlantic Yards? Here is the quote:
Property monopolized or in the possession of a few is a curse to mankind
Revolution: Pardon Our French

(Louis XVI of France)

Louis XIV of “L’Etat, c’est moi” (“The state is me”) fame was eventually succeeded by Louis XVI who oversaw the excesses and insensitivity that ushered in the French Revolution. Hamilton, a classicist who believed in restraining the worst side of human beings, was horrified by the “political convulsion” and Reign of Terror that was the French Revolution, unlike Jefferson, who endorsed it. Ironically Jefferson was part of the Virginian aristocracy and an owner of slaves while Hamilton, who entered the country as an immigrant with few resources save his own intellect, was an egalitarian believer in merit wherever in society it was found, so much so that he helped found the New York Manumission Society to promote the abolition of the slavery in New York. The more important point, however, is this, no matter who was in power, Hamilton believed in restraint and saw in France events that were: “subverting the foundations of right security and property, of order, morality and religion.”

Giving Turnabout a Fair Play

This brings us back to a point we promised to return to, that Hamilton believed in a strong judiciary that would enforce the laws with virtuous and disinterested fairness because “no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.” We have, ourselves, always believed that the test of justice is to imagine how the shoe would feel if it were on the other foot. This becomes less theoretical and more a practical matter for concern when revolutions are possible. The Michael Moore film we just mentioned advocates a revolution against the kind of plutocracy+plutonomy that supports projects like Atlantic Yards that are at the expense of the majority to enrich a few. As the effects of the current wealth-oriented economy become more severely grating there are also those such as author David Sirota in his new book (“The Uprising”) who are, in fact, predicting a popular uprising.

We cannot say for certain that an uprising or revolution will occur but if one does things will be turned upside-down to extent that all we have is “a government of men.” Those now in power would, we presume, be hoping at such a topsy-turvy that time that we actually have a “government of laws.” We mentioned earlier in the piece how the current determinant of whether eminent domain is used for or against a property owner is whether that owner is a member of the big developer’s club. That would likely no longer be so.

When Brooklyn Heights Under the New Administration Becomes Prospect Heights

Similarly, although Prospect Heights is being now being attacked by the government with accusations that it should be torn down and replaced by the Atlantic Yards mega-monopoly because there is pretextually-determined blight plus a good confluence of subways, my own wealthy neighborhood of Brooklyn Heights no doubt feels secure as of this moment that it will never be attacked by eminent domain abuse. But we have walked both neighborhoods and the “weeds” in Prospect Heights that were the basis for the government to find blight there can also be found here. Across Atlantic Avenue from us in Brooklyn Heights is a gas station virtually identical to the one that has been cleared as “blight” in Prospect Heights. There are more subway lines and stations in Brooklyn Heights than virtually anyways else in the city and excellent arguments can be made on this basis that Brooklyn Heights ought to torn down wholesale and replaced with buildings of much greater density. Doing so would redistribute the infrastructure wealth that exists here amongst a much larger population. The property could be taken away with eminent domain arguments that this was being done in the name of economic development.

Let History Be Your Guide to Preposterousness
(Robert Moses)

It may seem preposterous that historic Brooklyn Heights could be leveled in the name of such arguments. If you are still reading this article you probably have a love of history and believe in remembering, not obliterating the past. But if you remember recent history the preposition that Brooklyn Heights’ currently protection could vanish with a change in political climate is not so preposterous. Brooklyn Heights is one of the neighborhoods that was threatened with destruction by Robert Moses and barely survived. Some of it didn’t. The Brooklyn Queens expressway was rerouted to save a greater portion of the neighborhood but some was destroyed nonetheless. In addition, more of the neighborhood was torn down for urban renewal projects.

Revolutions Can Invite Even Conservative Spirits
(The Delaware Regiment at the Battle of Long Island)

Revolutions do come and they attract even classically oriented believers in law, order and restraint and conservative believers in principle like Hamilton. Hamilton fought in the revolution. He was amongst the troops who joined Washington early on for the Battle of Long Island. From the hills in Prospect Park next to where that battle took place it is possible to see down to the site where Atlantic Yards (about which the documentary “Battle of Brooklyn” is being made) will, if ever built, be visible. Physically, it is not so far way. Neither are we so far away in terms of the evolution of the human spirit and the ill-fated attractions of unfettered power examined in the time of Hamilton. What was known in Hamilton’s time should be remembered now.

An Atypically Fundamental Argument

While we are equipped with a law degree and have under our belt thirty continuous years as a lawyer, we acknowledge that the arguments with which we have involved ourselves here are not the typical lawyer’s arguments you might expect when addressing the superficial niceties generally refereed to as “administrative law,” the body of law that governs challenging state agencies for failure to comply with the law. What we are talking about here is something more fundamental than what usually gets discussed. But these fundamentals underlie the law and sometimes we drift too far away from fundamentals when we discuss only technical niceties without remembering what makes them important deep down. When dealing with a fundamental right such as protection against eminent domain abuse we think that fundamentals should govern what judges do. In Federalist Papers No. 78, Hamilton said as much about what judges should do: “They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” He was talking about when the will of the legislature (expressed in statutes) collides with fundamental constitutional declarations:
It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Does the Modern Day Tammany Hall have the Power to Put Asunder Laws and the Principles Behind Them?
(From Wikipedia: “Thomas Nast denounces Tammany as a ferocious tiger killing democracy; the tiger image caught on.”)

Hamilton was shot and killed by a man who helped found what became New York’s Tammany Hall. Atlantic Yards with its perversion of politics for private gain is the modern version of the scams of Tammany Hall. With proper review and backbone the courts can stand up and prevent Atlantic Yards’ abuse of fundamental liberties. If the courts instead simply defer without question to the pretextual preposterousness of political agencies, partially administering government with the fixed intent of abusing eminent domain to create no-bid mega-monopolies for Forest City Ratner then our laws will have become Hamilton’s sad “dead letter.” We certainly hope this is not to be the case. We certainly hope that New York State will have “a government of laws, not men” and that when the government, in the form of its authorities like ESDC wants to take private property it will be insufficient for them to say “L’Etat, c’est moi” whenever their pretextual motives are challenged. Otherwise, it is indeed time for a revolution.

1 comment:

George said...

America has an inspiring legal history. Thank you for digging it out of the attic and dusting it off.

And thank you to DDDB for insisting that we are a state governed by laws, not by Bruce Ratner and his henchmen.