Submitted by John Ryskamp, Feb 8, 2007 13:33

The bit below from the Sun shows the problem with not sticking with the legal tests. Minimum scrutiny--under which the government wants to go ahead with Atlantic Yards--says that the government policy (here, use of eminent domain) is OK as long as it is rationally related to a legitimate governmetn purpose.

Government purpose, under minimum scrutiny, is a question of fact for the trier of fact. If there is a triable question of fact--which there is in this case--it goes to the jury. That should have ended the inquiry. But it didn't, and here is why it didn't:

The Judge was not held strictly enough to the test. He seems to think it's a question of "What is enough to be a government purpose?" Not only is that not the question, but the question is not his to answer. The question is, is it a government purpose or not? This is a Judge who feels it is appropriate to overstep his Constitutional role. Why does he feel that way? This is why:

Now the Court has clarified that government purpose is indeed a question of fact for the jury. (It did so in 1996 in two cases, Romer v. Evans and U.S. Virginia, because if there is, in FACT, no government purpose, then there is no government, and Marbury v. Madison says there is a right to government). But both the lawyers and the judges are unfamiliar with this, and still tend to decide in the same old way.

The corruption of the country has infected the judiciary, as we see in Judge Levy's remarks, and corrupt government officials tend to side with the government.

Cheers,
jr

"What I'm hearing is that so long as a defendant can articulate a public use," Judge Levy asked, eminent domain is "per se constitutional?"

"Your honor, I would say yes," Mr. Braun said, adding that

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