The Yankee’s Hoggish New Stadium Monopoly Taxes The Rest of Us

If you haven’t yet heard WNYC’s October 28, 2009 Ailsa Chang story about how the new Yankee Stadium is sucking up inside the cloister of its privately-owned walls the economic activity that once upon a time existed in the surrounding Bronx community, take seven minutes to listen to it now, without further delay. WNYC also provides a text transcription of the story at its site. (See: News: Main Street NYC Returns to 161st Street in The Bronx, by Ailsa Chang.)

Waking Up to Some Singular Facts

Develop Don’t Destroy Brooklyn dubbs this arresting story (broadcast on the evening of the World Series kick-off): “A Cautionary Tale for Local Businesses Around the Proposed Atlantic Yards Arena Site” (10.28.09). Irrespective of whether Yankee Stadium is in all ways precisely analogous to the proposed Atlantic Yards Nets arena (Atlantic Yards Report analyzes that it isn’t, see: Saturday, October 31, 2009, Would the AY arena, like the new Yankee Stadium, suck retail inside?), the situation at Yankee Stadium should wake up virtually anyone to the fact that projects sold to the public as providing “economic development” may deliver just the opposite. Why is that? In order to consider Yankee Stadium in terms of what it does and why it is important to consider it first for what it is: a monopoly.

Larger “Sports” Complexes Fewer Sports Seats

Listening to the WNYC story made us think about the stadium’s monopolistic characteristics when we described how sports arenas and stadiums in this country are becoming much bigger (three or four times the park sizes of 40 to 50 years ago) even when the number of seats in them is, if anything smaller, and that is because these sports parks are trying to capture inside their walls all the shopping and eating drinking that their patrons might be doing when they visit. Yankee Stadium is just one example. The WNYC story points out that while the new ball park has “4000 fewer seats” it has become a “mega-mall” that is in decimating competition with local merchants taking away the business that used to be theirs.

We are not sure about the above reported figure of “4000" fewer seats: The reduction seams to be even greater. The Yankees’ own site says the reduction was 4,561, from 56,886 to 52,325, but the latter of those two figures (52,325) is only good if you oxymoronically include 1,886 standing room “seats.” Going by the figures in Wikipedia the reduction was 7,459, a reduction from 57,545 to 50,086 and Field of Schemes estimated that the it was about a 14% reduction in real seat terms. (See: February 26, 2009, Yanks exec: Yes, we have no seats.)

Cartel Behavior

No matter. A reduction of supply to boost prices is a characteristic of cartels. The Times reported that the Mets cut back the number of seats in their ballpark by 25% in order to stoke demand (See: Fewer Seats and More Sellouts Were Mets’ Priorities, by Richard Sandomir, March 27, 2009.) The new Mets Citifield stadium has 42,000 seats, far fewer than their average fan attendance in recent years (51,165, in 2008). That same article reports the seats in the new Yankee Stadium are below the “team’s 2008 attendance average of 53,069.”

Learning Not To Share

The more important point, however, is how the new Yankee Stadium contains a much bigger mall full of national chain stores, and that it doesn’t share its patrons with the surrounding neighborhood. In fact, transit facilities in the area have been redesigned to facilitate this lack of sharing. The WNYC story includes an interview quote from Stanford University economist Roger Noll who it says “has looked at every stadium built in the last 20 years” to conclude they don’t give “a real, substantive boost to neighborhood businesses” which often actually end up “doing a lot worse.” Says Noll: “The whole point of a modern athletic facility – whether it’s an arena for hockey and basketball or a stadium for football or baseball – is to get all of the money to be spent inside the stadium.” There is juicy stuff here, so listen to the WNYC story about how the stadium has vacuumed up much of what was the community’s economic activity into their private walls where they will be paying rent to the new stadium’s owner.

Grabbing Some Commodified Culture

The beginning of this October we attended an afternoon session at a Kingsbourough College conference on Brooklyn development that focused on Atlantic Yards. One of the presentations was by Stuart Schrader of the CUNY Graduate Center. It dealt, in big picture terms, with Atlantic Yards as an effort to seize and monopolize the culture of what is Brooklyn. Mr. Schrader’s paper is not yet available but he directed us to another paper that he said had influenced him, The Art of Rent: Globalization, Monopoly and the Commodification of Culture,
by David Harvey (08.27.06). The overall point of all this is that although we tend to think in terms of monopolies as being with respect to certain industries and commodities, the interest in capturing a monopoly can extend to being an exclusive conduit for virtually anything, even culture.

One can probably detect from the term “monopoly rent” and thinking about the concept of “surplus rent” and the modern day use of the more recently-coined term “rent-seeking” that there is a bit of classical dialectic underlying these concerns that hearkens all the way back to Marx, but it is hard not to be conscious of the urge that Forest City Ratner and others have to appropriate native culture such as Brooklyn’s unto themselves. As we once previously quoted Norman Oder of Atlantic Yards Report writing about the Ratner organization’s use of the image of the Brooklyn Bridge “which happens to be closer to the Brooklyn Paper's longtime DUMBO offices, rather than the generic MetroTech office park” . . . “Forest City Ratner has not been shy about appropriating Brooklyn Bridge iconography in advertising.”

The tragedy is that, to the extent that monopolistic takeovers of culture succeed, what almost invariably ensues is its replacement with something less authentic and more generic and cookie-cutter like the aforementioned MetroTech.

Putting the “Mega” with the “Monopoly”

We wanted to mention Mr. Schrader ‘s presentation but we have probably gone too far afield in doing so because it is unnecessary to get into esoteric concepts about the monopolization of culture in order discuss the many monopolistic characteristics in which Atlantic Yards is throughly steeped. So much so that these days we find that we are nearly as apt to routinely refer to the Atlantic Yards project simply as a `mega-monopoly’ as we are to refer to it as a `megadevelopment.’

Layers Upon Layers of Monopoly

Mega-monopoly probably describes Atlantic Yards better than any other single word given that:

• The gestating seed of Atlantic Yards was a big league sports franchise. These franchises are exempt from antitrust rules and if you search the Atlantic Yards Report site you will find a lot of discussion of their monopolistic nature by economists and other experts. (You will also find a lot of our own comments about Atlantic Yards as a monopoly.)

• Atlantic Yards’ birth was midwifed by another monopolistic expedient, the award of the project to Forest City Ratner on a no-bid basis, which was essential to preclude any possible competition.

• Its succor and the basic sinew of its composition is the eminent domain abuse that chases away all other competitors and transforms what was the competitors’ into Forest City Ratner’s.

• Atlantic Yards has been further coddled by government agencies that have lavished on it additional hundreds of millions of dollars from the taxpayers on a no-bid basis, given its extraordinarily valuable naming rights and exempted it (and these many gifts) from the requirements of appraisal and bids under the Public Authorities Accountability Act.

Maturing Into a Tax Base Problem

Take away any one of the above special monopolistic favors, for instance by subjecting Atlantic Yards to the requirement of a fair bid, or by take away its privilege to abuse eminent domain, and the project fails, it withers unwholesomely on the vine quite as it deserves.

On the other hand, allowed to mature, the mega-monopoly becomes something rather monstrous that drains the resources of the community at large. Here is something important that the WNYC report on Yankee Stadium neglected to mention. The community economic activity in the Bronx that existed before the new Yankee Stadium was built was all increasing the value of local property paying property taxes. It was all contributing to the city’s tax base. But Yankee Stadium is tax-exempt (courtesy of political deals present and past). It doesn’t pay property taxes. That means that when all that local economic activity was sucked up within the sealed walls of the stadium the activity that was on the tax rolls helping everyone in the city, metamorphosed into payments that now only line the pockets of the private owners of Yankee Stadium.

No Taxes? Another Special Benefit Among Too Many to Mention

The privilege not to pay taxes! That’s one more of those special benefit that keeps projects like Yankee Stadium and Atlantic Yards alive. When it comes to Atlantic Yards the list is so long, it is hard to remember all the special benefits. For instance, shouldn’t we mention the zoning override that will selectively apportion an extraordinary amount of extra density on the Ratner property as opposed to other property tax-paying owners in the borough?

Are Taxes Intercepted and Redirected Back for the Private Benefit of Those “Tendering” Them Truly Taxes?

Now it’s time to get a little bit technical because Yankee Stadium’s monopolistic removal of pre-existing economic activity from the tax rolls provides a marvelous opportunity for us to elucidate upon an important, sometimes debated point. Sometimes people say that Yankee Stadium is not off the tax rolls. And sometimes the same people say that Yankee Stadium is not financed with the city taxpayer’s money. (The same applies to the proposed Atlantic Yards Nets arena because the same R-TIFC-PILOT" agreement scheme- pronounced "Artifice-PILOT"– or "Return Total Intercepted For Costs-Payment In Lieu Of Taxes"-- that was used to finance Yankee Stadium is proposed to be used for the arena.) We think that these people are wrong and are trying to promote ideas that are mutually self contradictory. We admit that there are areas with certain shades of grey which we will get to in a moment, but in the end they are not so important.

Basics Before Nuances

Before we get into the nuances, let us review the basics. The owners of Yankee Stadium pay “theoretical” real property taxes (sometimes called “synthetic” property taxes in the community of lawyers financing these deals just so that nobody confuses them with the real thing). The reason the taxes are only theoretical is because the government never gets them; they never go into the public coffers. Instead they are intercepted and used to pay the personal obligations of the Yankee Stadium owners, most importantly the bonds that were issued to finance the Stadium.

We have been quoted as explaining it this way:

The setup is basically like paying taxes on your home and then having the government use that money to help you pay off your mortgage," said Michael D. D. White, a former vice president and top lawyer for the state finance authorities.

(See: Your 'Net' Loss, $2b in Taxes to Ratner, By Rich Calder, April 14, 2008.)

So basically, if you want to think of the Yankee Stadium as being on the tax rolls you have to think of it as being publicly financed with taxpayers’ money because all the taxpayers’ intercepted money goes to the privately owned sports team. Conversely, if you want to think of the stadium as being privately financed then don’t think of it as being on the tax rolls. You can’t have it both ways- - Something we’ll come back to in a moment. One more thing: This neat little bit of legerdemain is the basis upon which the interest on Yankee Stadium bonds was theoretically made tax-exempt which constitutes a whole other raid on the city, state and federal taxpayers. (We’ll get back to that too.)

We described this in more detail with respect to Atlantic Yards (shortly before the official numbers increased a lot) in this Huffington Post article we authored: More Money for the Very Rich: An Unsporting Pursuit? March 17, 2008. Just recently the same subject was visited with a similar explanation by Daniel Goldstein in this Huffington Post article: Wrong Way PILOTs Would Crash into Atlantic Yards, November 3, 2009.

Bloomberg Leads the Stadium Bond Duplicity

Who are those who would try to have it both ways? Mayor Michael Bloomberg for one, someone who was no doubt just trying to confuse the voters since he surely ought to know better. We took Mr. Bloomberg to task on this in: Stadium Finance: Mayor, Professing to Know Numbers, Should Know He Can’t Have It Both Ways (Unless He’s Keeping Two Sets of Books) (Monday, December 15, 2008) For another article where we took the mayor further to task about Yankee Stadium bonds, getting into other objections about them, see: Another Lulu: Revisiting the Yankee and Mets Stadium Scams (Tuesday, January 13, 2009).

Acknowledging Some Difficult Nuances

Now for some nuances, and then we will get to why the way that Yankee Stadium is taking economic activity from neighboring properties off the tax rolls relates to these nuances.

We are about to set forth some distinctions that are difficult to discern and understand. We will do so for the purpose of acknowledging a different point of view even though we don’t exactly agree with it. We warn you that the level of sophistication involved in these distinctions might be a bit daunting but if you bear with us we think we will be able to describe then to you.

It might help to begin with an event that dramatizes a point.

City Parks Commissioner Benepe, Toes the Mayor’s Line on Yankees’ Bonds
(above: City Parks Commissioner Adrian Benepe at Brooklyn Bridge Park meeting.)

We had an elucidating exchange about the Yankee Stadium bonds with New York City Parks Commissioner Adrian Benepe when the subject came up at a January meeting where plans for the Brooklyn Bridge Park were being presented. Mr. Benepe was there to provide figures to put into perspective the perceived high cost of that park. During the question and answer session one member of the audience who had concerns about the luxury development planned for the park brought up Yankee Stadium (also mentioning the similar Mets stadium) as an example of Bloomberg’s propensity for giveaways to his wealthy and connected friends. Mr. Benepe responded, like a good commissioner, apparently taking a page from Bloomberg (see our above link about Bloomberg’s statements the month before). Benepe wound up saying exactly those things that we said we disagree with:

Just to correct the record. The city isn’t paying for either stadium. Both the teams are paying for the stadiums. The city is paying some related costs around the stadium. The billion dollars is being paid for by the Yankees, . . the $800 million being paid for by the Yankees . .

Someone in the audience, perhaps the original questioner, interrupted to say the “The bonds, the bonds.” Mr. Benepe continued:

Yeah and they’re paying back the bonds. They have to pay them all back.

At this point it was our turn to interrupt to correct Mr. Benepe and we called out that the bonds were being paid with city real estate taxes and that he was wrong. Mr. Benepe, before he decided that silence was the better part of valor, said:

They don’t pay property taxes, haven’t paid them before.

The Yankees Don’t Pay Real Property Taxes and Weren’t Paying Them Before

After the question and answer session concluded we spoke with Mr. Benepe, telling him that while we disagreed with him and consider that the Yankee Stadium bonds are being paid with intercepted taxpayer money (just as the city has certified to the IRS), we understood his point about the Yankees just not paying taxes at all. There is an argument that people like Mr. Benepe apparently subscribe to that it should be accepted as a forgone conclusion that the Yankees just don’t pay taxes, or at least that there will be a lot of taxes from which we can expect that society will automatically excuse them. We don’t agree in such a forgone conclusion and that conclusion is somewhat at odds with the theory that entitles Yankee Stadium bonds to any possible tax exemption. But, if one makes it a forgone conclusion that the Yankees are entitled not to pay taxes then the “taxes” that they don’t pay and use instead to pay off their own private bonds can be viewed by people like Mr. Benepe and Mayor Bloomberg as a kind of magic found money that wouldn’t otherwise exist.

Not That Simple: Some Complications

Additional Real Taxes At Least Someone Else Might Have Paid

Stop! It’s not that simple. Complication number one: It may be easy to conceptualize that since the Yankees were not paying taxes on their old stadium that maybe at least that same amount, the amount they were already not paying, should be regarded as an amount it would be impertinent for timid public officials to request them to pay later on. But what about any taxes beyond that? Say for instance, when that tax exemption is expiring or when a new stadium on new land increases the value of what the Yankees own and should be taxed? (We are coming back to this in a minute.)

And what if such a change in status is displacing another possible thing of taxpaying value? In the case of the proposed Atlantic Yards Nets arena, the arena which won’t pay taxes is to be built on a central Brooklyn site above subway stations, a site that would certainly otherwise be occupied by a taxpaying commercial property such as an office building or housing. Yankee Stadium arguably didn’t replace another possible taxpaying commercial property: What it did replace, rather sadly, was the community’s parks. (The city has so far been slow to construct even the inadequate replacement amenities that are supposed to compensate the public.- A responsibility that is partly Mr. Benepe’s.)

Additional Really Truly Completely Fake “Synthetic” Taxes

Finally, one more complication: Beyond the taxes that the Yankees wouldn’t pay because they `traditionally’ don’t, and beyond the taxes that the Yankees perhaps should pay and don’t as a result of the convoluted R-TIFC PILOT financing scheme, there are some additional theoretical “synthetic” taxes that would never ever be paid by the Yankees or anyone else under any circumstances because the taxes are entirely a fiction meant to sucker the IRS into considering the Yankee’s bonds tax-exempt. These additional theoretical “synthetic” taxes were created by the New York City Finance Department by artificially inflating the assessed value of the stadium to an absolutely unrealistic figure. (See: Sunday, April 12, 2009, Bloomberg Update: Fire and Ice (Part II) and also Sunday, April 19, 2009, Keeping up with Bloomberg and Friends: Stark New Scandals and Is it True WSJ Readers Don’t Commit Murder?) (We told you this was complicated.) So to the extent that these “taxes” never in fact existed or could even possibly have existed and were just created as a fiction to swindle the IRS they, are indeed, more magic found money. Though these fake taxes don’t actually divert real property taxes even though they do cost city, state and federal taxpayers money in the end.*

(* How intercepted real estate taxes should be categorized, affects a precise calculation of subsidy that big projects like these are receiving, for instance the $2-3 billion in subsidy that we calculated is going to Atlantic Yards. To the extent that one admits that a portion of the tax payments theoretically intercepted are simply fictional shams meant to fleece the IRS, then it is appropriate to somewhat reduce the total subsidy figure. Similarly, the Benepe argument with which we disagree would be that the total subsidy figure should be further reduced by disregarding the amount of subsidies the Yankees have already been routinely pocketing.)

Declaring the Yankee Stadium Bonds Taxable

What about the fact that the Yankee Stadium bonds are not actually entitled to be tax-exempt because of this last illegal ruse? (See: Saturday, November 8, 2008, Does Questionable Assertion of Attorney-client Privilege Point to Yankee Stadium Bond Taxability?) We still think that irrespective of whatever activity there has been by bond lawyers skulking about in Washington, D.C. in their efforts to persuade the IRS not to declare the Yankee Stadium bonds taxable as a result of this abuse, the IRS should finally get around to lowering the boom and declaring the Yankee Stadium bonds taxable. New York City officials went too far: The IRS should let them know that. The IRS needs to send a message and dismiss the lobbying.

In Chart Form

The forgoing seemed complicated enough so we thought it might be worthwhile to put it in chart form. So here it is (click to enlarge):

But, With WNYC’s Insight, Let’s Add One Important Thing to the Chart

We thought we had all the bases covered with above chart. That was until we heard the WNYC story and we realized that we had never thought about the way that the new Yankee Stadium/Mall would absorb the local taxpaying economic activity into the shelter of its tax exempt walls. It occurred to us that this needed to be added to our chart of the taxes not being paid. Below then is the revised chart of the taxes the Yankees are not paying (click to enlarge).

As the addition to the above chart observes, the mall-ifcation of the new stadium has created new off-the-tax-rolls shopping mall property. It means that taxpaying economic activity that once involved many local merchants outside the stadium has been simultaneously monopolized and converted into property that is off the tax rolls. Further, because the in-stadium shops are off the tax rolls they are more likely to out-compete the taxpaying mom and pop enterprises that will still try to exist in the community. Commissioner Benepe may have been correct in pointing out that the Yankees had a tradition of not paying taxes on their old stadium but now with the regime going into effect at their new stadium the Yankees are starting a new tradition of not paying taxes on a whole lot more than what they never paid taxes on before. In other words, this is an example of how Bloomberg’s “economic development” projects are anything but.

As we said at the beginning of this article, if you haven’t yet heard WNYC’s October 28, 2009 Ailsa Chang story about how the new Yankee Stadium is sucking up the economic activity that once upon a time existed in the surrounding Bronx community take seven minutes to listen to it now, without further delay. We hope these additional insights about the monopolistic characteristics of the development government officials are fostering helps to further inform your listening.

A Post That is Just a Bit Montesquieued

(Charles de Secondat, baron de Montesquieu)

We thought we found the New York Times editorial page today sounding rather like Noticing New York except the Times never sounds like us when its subject is the Atlantic Yards megadevelopment, that project being done by the Times' eminent domain-abusing business partner Forest City Ratner. In fact, the Times today was addressing another very serious matter. This is some of what the Times had to say:

The ruling distorts precedent and the Constitutional separation of powers to deny justice . . . and give officials a pass for egregious misconduct. The overt disregard for the central role of judges in policing executive branch excesses has frightening implications for safeguarding civil liberties, as four judges suggested in dissenting opinions.

To find out what the Times was writing about read Editorial: A National Disgrace (November 11, 2009). To find out how it resembles what we were saying about Atlantic Yards this week see: Judicial Review of Atlantic Yards Corruption: Laws Should Not Be A "Dead Letter"(Tuesday, November 10, 2009).

Jane Jacobs Atlantic Yards Report Card #27: Use of Empiricism and Curiosity to Determine and Work with Actual

(President Obama delivering his inaugural address from which we quote, emphasis supplied: “But those values upon which our success depends—hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism—these things are old. These things are true. They have been the quiet force of progress throughout our history.” ESDC, we note, is hardly a dead cat.)

This is evaluation item #27 (of 47) of the Jane Jacobs Atlantic Yards Report Card

Use of Empiricism and Curiosity to Determine and Work with Actual Facts and Reality? NO

Jane Jacobs was remarkable for being able to see and understand what “experts”who had preceded her overlooked or failed to understand and she did it by rigorously going out to observe what was actually out in the world to be observed rather than seeing what she expected, wanted to or thought she should see. If the Atlantic Yards Environmental Impact Statement is representative of what the sponsors of Atlantic Yards see, or don’t, the evidence is that they are not seeing the world of this Brooklyn site for what it is but for what they hope would justify their proposed actions. Likewise, if you go by the inaccurate descriptions of the proposed project and area in the materials the Ratner organization promulgated to promote the project. Those who inaccurately report that the project is a project being built “over rail yards” when only 40% of it is, or who describe the area in which the projects is proposed as “blighted” when it is not are similarly complicit uncritical promoters of the project.

JJ Cites: [Planners “have ignored the study of success and failure in real life, have been incurious about the reasons for unexpected success. P.6 It may be that we have become so feckless as a people that we no longer care how things work, but only what kind of quick easy impression they give. . . p7,8 That’s a slum!/It doesn’t seem like a slum to me. p.10 Because we use cities, and therefore have experience with them, most of us already possess a good groundwork for understanding and appreciating their order. P. 372.]

Jane Jacobs Atlantic Yards Report Card #26: Allowing People to Move up the Ladder Through “Unslumming”? NO

(Above: The Spalding Building within the footprint of the site of the proposed Atlantic Yards, which was fully renovated as part of natural "unslumming" of the neighborhood.)

This is evaluation item #26 (of 47) of the Jane Jacobs Atlantic Yards Report Card

Allowing People to Move up the Ladder Through “Unslumming”? NO

Jane Jacobs devoted a chapter of her book to the subject of the way in which areas of cities thought of as “slums” went through natural processes to become anything but. She called the process “unslumming” but these days it might be considered much the same thing as gentrification depending on the income levels that come to prevail in an improving area. In describing this kind of improvement she countered the wisdom or dogma of the day that slums needed to torn down to be improved and that residents needed to be removed and relocated in large scale reshufflings of the population. Jacobs’ own Hudson Street neighborhood in Greenwich Village was once proposed to be torn down in one such proposed reshuffling. It wasn’t and is now highly gentrified. Writing about her own neighborhood Jacobs pointed out that it was in many ways very healthy in the first place. Atlantic Yards involves the tearing down of blocks and reshuffling of people living on them in much the same fashion as the old-style urban renewal projects of the days of yore. In much the same way, justification for the tear down and reshuffling is being offered by describing as `unhealthy’ areas that don’t believe themselves to be such and are quite busy improving themselves through natural processes.

Jane Jacobs’ analysis placed her one important step ahead vis a vis what other analyses conventionally concern themselves with. Justice Clarence Thomas in his dissent in the U.S. Supreme Court’s Kelo case predicted that the poor would suffer the most when eminent domain was used for large scale economic development (our modern day version of urban renewal projects) because they would be the principal targets of the planned evictions. Jane Jacobs, in realizing that the neighborhoods “unslummed” naturally with many of the same families remaining in place as the neighborhood improved realized that the poor were not just being unproductively evicted from a poor neighborhood, there were being evicted from a neighborhood that was likely a potentially wealthier improved neighborhood. In other words the less advantaged in society are being knocked off an ascending ladder.

It is quite clear that the neighborhoods in the vicinity of the Atlantic Yards site were significantly improving economically at the time that Atlantic Yards was proposed with the same kind of unslumming that Jane Jacobs described. That kind of unslumming involved much less displacement of low income rental families than the Atlantic Yards plan necessitates and it would have left in place even lower income units. There is one thing that Jane Jacobs did not specifically envision in regard to these concerns (though she was quite familiar with greed and a frequent critic of it): With developer-initiated eminent domain, we find that the developers driving the process favor pursuing eminent domain upheavals in those neighborhoods that are most assuredly headed in the nearest term for the kind of natural unslumming that Jacobs documented occurs naturally.

(Below: Also newly renovated, the Pacific Street building that is proposed to be trin down in which Daniel Goldstein, a DDDB plaintiff challenging eminet domain lives.)
(Below Tracy Collin's photo from this Flicker link: Also newly renovated and on the other side of Pacific Street from the site of the proposed Atlantic Yards, the Newswalk Building containing many condominiums.)

(Below: Another example of the kind of buildings you can find in the Atlantic Yards site neighborhood just by looking across the street. This may not be a newly renovated condominium, but does it need to be?)
JJ Cites: [Chapter 15.]

Jane Jacobs Atlantic Yards Report Card #25: Convert Borders to Seams? NO

This is evaluation item #25 (of 47) of the Jane Jacobs Atlantic Yards Report Card

Convert Borders to Seams? NO

Jane Jacobs suggested that borders could be converted to “seams” and would not have to function as borders if along their edges there were frequent invitations that would bring users across the border. Atlantic Yards does not seem to have any lively cleverness in its design that would accomplish this though some corrections might one day get fitted in to correct some of it problems. Corrections will be more difficult in some areas like where the arena presents large blank walls more than a block long. Further, as the megadevelopment will take decades, perhaps three to four, there will be decades where with acres of parking lots and a still open cut for the rail yards little or no correction will be possible.(Above: The seven-story tall back of the proposed arena which, straddling a closed-off street, will be nearly two blocks wide. It is likely to face acres of parking lots and open rail yards for decades.)
(Rendering by the Municipal Art Society showing the parking lots and open rail yard cuts the teardown of the neighborhood the Ratner project plan involves. At this point, even some of the replacement buildings shown above next to the arena probably won't come in the near future either. -Original Aerial Photograph by Jonathan Barkey.)

JJ Cites: [. . but making the partnership connections between them, explicit, lively and sufficiently frequent. . . The principle here has been brilliantly stated, in another connection, by Kevin Lynch, associate professor of planning at Massachusetts Institute of Technology, and the author of The Image of the City. “An edge , may be more, than simply a dominant barriers, . . . writes Lynch, “if some visual or motion penetration is allowed through it- - - if it is, as it were structured so some depth with the regions on either side. It then becomes a seam rather than a barrier, a line of exchange along which two area are sewn together.” p. 267]

Jane Jacobs Atlantic Yards Report Card #24: Avoidance of “Border Vacuums?” NO

This is evaluation item #24 (of 47) of the Jane Jacobs Atlantic Yards Report Card

Avoidance of “Border Vacuums?” NO

Jane Jacobs pinpointed and described a phenomenon that is readily possible to observe many places in almost any city- What she called “border vacuums.” She observed how borders that interrupted the flow of the city and city streets tended to create areas of deadness surrounding them. Among other things, she observed that projects built like Atlantic Yards on superblocks visually separating themselves from the city created these borders and associated vacuums notwithstanding that they might offer paths and promenades for pedestrian travel.
JJ Cites: [Railroad tracks are the classic examples of borders. . . p. 257 And if we look at the parts of te cities most literally attractive- - i.e. Those that literally attract people, in the flesh- - we find that these fortunate localities are seldom in the zones immediately adjoining massive single uses. The root trouble with borders, as city neighbors is that they are apt to form dead ends for most users of city streets. They represent, for most people, most of the time, barriers. Consequently, the street that adjoins a border is a terminus of generalized use. If this street, which is the end of the line for people in the area of “ordinary” city, gets little or no use from people inside the single-use border-forming territory, it is bound to be a deadened place with scant users. This deadness can have further repercussions. Because few people use the immediate border street, the side streets (and in some cases the parallel street) adjoining it are also less used as a result. They fail to get a by-the-way circulation of people going beyond them in the direction of the border, because few are going to that Beyond. If those adjoining streets . .therefore, become too empty and therefore in turn are shunned, their adjoining streets may also be less used. P. 259. Some borders damp down use by making travel across them a one-away affair. Housing projects are example of this, the project people cross back and forth across the border (usually, in any appreciable numbers, at only one side of the project or at most two side). The adjoining people, for the most part, stay strictly over on their side of the border and treat the line as a dead end of use. P. 261]

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.