It’s Not for Big Business, Folks — It’s for the Likes of Poor Hot Dog Vendors

            When you practice, teach and write about the law of eminent domain for a while, it kinda makes you think.  After 40 years of doing that, we have concluded that there is some sort of evil black magic about this field of law that makes otherwise brilliant and revered people say silly things. You don’t believe us? Try this one. The Republican, a Springfield, Massachusetts newspaper of April 9, 2008, reported a visit to the U.S. Supreme Court by a group of local students, and their chat with Justice Breyer, as follows. We quote in haec verba; 

“Suzanna Strempfer, a senior from East Windsor, Conn., asked Breyer about the recent Kelo vs. City of New London decision, in which the court agreed that the town of New London could lawfully condemn Kelo’s home so that the land could be used by a private developer. Asked if he thought that decision would open the door for abuse by private industry, Breyer said there is always a private aspect to any government taking of property for a public purpose, giving the example of a city building an athletic stadium – obviously a public purpose – that would, as a byproduct produce jobs for private industry, such as hot dog vendors gaining a new venue for selling their products.”

Abuses? You want to see abuses? Take a look at the artcle about Port Chester, New York, by Professor Richard A. Epstein, entitled The Taking of Port Chester, FORBES, March 29, 2008, at p. 40. If the Port Chester caper described by Epstein isn’t exemplary of abuse of the power of eminent domain, what is? Since the Supreme Court refused review in that one, we are left to wonder what it would take for Justice Breyer to understand the concept. 

We’ll bet that mega-developer Bruce Ratner can’t wait to build his $3 billion Atlantic Yards Brooklyn redevelopment project, including a new stadium for his baseball team, so those poor local hot dog vendors can make an extra buck. Increasing hot dog sales in a professional sports stadium is a public use, you know — it says so right here in the Living Constitution. But be careful about selling Hebrew National kosher wieners to baseball fans because the folks who make them (the wieners, not the fans) say that they answer to a Higher Authority — so selling those under the aegis of public use  might give rise to a violation of the Establishment Clause. You never can tell what the Living Constitution may say next.