Eminent Domain and Judge Sotomayor

On the steps of City Hall at 1:00 PM today, the business owners and workers of Willets Point will be joined by Councilman Tony Avella, Public Advocate candidate Norman Siegal, and a host of other local community activists, in a press conference that will express concern over Judge Sotomayor's views of eminent domain; and the future of property rights at the Supreme Court.

Across the country states and municipalities have begun to recognize the dangers in the widespread abuse of eminent domain laws-and have begun to take steps to change them In New York, however, laws that give almost unrestrained power to the state to seize property remain on the books; and allow for the permissive, and some would say promiscuous taking of private property for just about any reason.

In variably, property is being seized-or proposed to be seized-from small home owners or small businesses, and transferred to larger economic entities; with the underlying rationale that the new use would be, "more productive." This is the kind of rationale that can justify almost any government taking of property-and renders the entire notion of private property, and its constitutional protection, almost obsolete.

Such is the case with the Willets Point businesses and the city. For decades, the city has neglected the so-called Iron Triangle; failing to provide the area with basic services such as paved roads and functioning sewers. In spite of this negligence, the area has thrived as an economic engine for a wide range of small businesses-but particularly for immigrant workers and small business owners. Estimates suggest that there are over 250 local businesses employing approximately 2500 workers.

The classic definition of blight, no? But if the area is blighted-and Willets Point wouldn't be anyone's definition of upscale-it is the city that has created the blight through its conscious neglect. The situation reminds of of the apocryphal story of the two Germans who were passing by the Jewish ghetto during the Nazi regime. One of the Germans turned to his companion and said, "Don't these Jews smell." His companion replied, "That's not the Jews who smell, it's Nazism."

So we acknowledge that Willets Point could use a face lift; but the extreme makeover planned by the Bloombergistas is an unnecessary assault on small business, something that has become a hallmark of the current administration. Which brings us to the larger eminent domain issue, and the role that Judge Sotomayor will play when she does become the new SC justice.

Up until now, Sotomayor has been tone deaf on the fundamental property rights issue inherent in eminent domain cases. What she seems to lack-at least until now-is a sense that the protection of property is a bedrock constitutional issue. After all, as Myron Magnet has astutely pointed out: "It’s worth recalling that when the Founding Fathers led the American colonists in revolt against British oppression, they weren’t rebelling against torture on the rack or being chained in galleys or having to let aristocrats deflower their daughters. They were rebelling against taxes. To them, having to pay duties they hadn’t voted for themselves was a tyrannical taking of property—theft—and, in true Lockean fashion, they concluded that since government exists to protect life, liberty, and property, a regime that does the opposite renders itself illegitimate."

In the Didden v. Port Chester case, Sotomayor simply punted on the ED issue and, as Ilya Somin has opined, it is, “perhaps the worst federal court property rights decision in recent memory.” This decision, as well as Sotomayor’s equivocal responses to the questions on eminent domain posed in her hearing last week, is what is causing real concerns among the local New York groups; and the reason why they will be out in force on Monday.

So the Willets Point United group will be out in force to ask Judge Sotomayor, now that she will be taking on a new judicial role-and is back in NYC to visit, to take a fresh look the eminent domain question-and to look at how the abuse of eminent domain has really hurt the little guys that she has fought her whole life to protect. We'll give Jerry Antonacci of WPU the last word here:

“Property rights used to be sacred, but local governments, with the collusion of the Supreme Court in the Kelo case, have eroded this right-and it needs to be restored to its honored constitutional status. If they can take our businesses away than no one’s home is safe in this country from the reach of greedy developers and corrupt local elected officials. Our fight is the kind of fight that Sonya Sotomayor would have led when she worked for the Puerto Rican Legal Defense Fund a few decades ago. We are calling on her to remember her roots and treat our rights with the respect they deserve.”