..and so snotty on the blog where you lack the class and guts to allow those with a difference of opinion to comment.

Incidentally, I think you would not be off-base in calling Mr. Loophole anonymous, since he was a one-off ring and run poster; I only linked him because I thought his major point need to be made. However, he does not entirely reflect my views, which are far more in accord with the anonymous poster who calls himself Mr. Flywheel.

The essential point made by both those gentlemen is that something isn't unconstitutional merely because it is public policy you dislike, and that law made in that sort of manner, virutally calling out to judges to follow the public will is idiocy with slippery slope consequences.  

How do you think the public would have voted on Brown v. Board of Ed or flagburning?

Guess we'll have to disagree on that.

Our decision not to allow comments has nothing to do with squelching dissent.  It has everything to do with the work that monitoring comments entails, in order to keep the discourse respectful; see any number of blogs that DO allow comments to see how much work that is, especially when the topic is something that engenders the passions that Bruce Ratner's Atlantic Yards project does. In case you haven't noticed, we publish ALL news and opinions about Atlantic Yards, whether it jibes with our particular point of view, or not.  As for our class and guts, people will have to decide for themselves; your opinion there is duly noted.

No doubt the public would have voted against school integration and for the incarceration (or worse) of flagburners.  And the public would have been wrong. But the public is right when it comes to the abuses of eminent domain (the people are not always wrong, you know).  Yet they certainly have been given little chance to weigh in on this topic, especially here in New York.

Surely you don't think the U.S. Constitution anticipated the use of eminent domain for "economic development" purposes, or for trumped up "blight removal?"  The idea of using eminent domain for sports venues (notorious money-losers, civic pride or not) or Pfizer plants is a bastardization that needs to be checked.  Again, the Left could prevent the Right from gutting environmental regulations and other common-sense rules by tackling the abuses of eminent domain, but they risk disaster by turning a blind eye to the taking of homes so that Bruce Ratner can make a profit on his investment in the New Jersey Nets. And you'll have to explain to me how overturning Kelo would open the door to that.

I believe so much of our constitutional litigation could never have been anticpated by our found fathers, and believe in the concept of a "living constitution."

It is the Scalia's and Thomas' of the wolrd who are obsessed by the founder's intent, except in those instances they find it inconvenient. It is they who want to return of to an unregulated pre-New Deal Hobbesean state of nature--

No thanks says I.

As to public opinion on Eminent Domain, this is surely relevant to what the legislature should or should not be doing, but despite Mr. Dooley's famous observation, is of little legal relevance to the matter of constitutionality. Something can be morally wrong or bad public policy, but theorectically, this should not impact one way or another on where it is found to be constitutional. 

And, if we are going to drag public policy into questions constitutionality, which sometimes we must, then surely, we must always be wary of the slippery slope and what the adoption of one sort of logic will eventually entail.

So, even though I think eminent domain law should be changed legislatively to adjust to the prevailing public opinion, I do not think my views are relevant to the issue of constitutionality. I think John Paul Stevens' public statement on Kelo and medicianl marijuana speak volumes, as does the US Supreme Court's refusal to hear your case. 

As to the claims in your current state law litigation, I have no opinions. The state law concerns do not have the same constitutuional law implications as the federal litigation, so litigate away.     

No doubt the framers intended some degree, perhaps a large degree, of Constitutional evolution.  And you won't find any strict constructionists at NoLandGrab.  Just because we think that using eminent domain to take one person's property and give it to another person is wrong (especially when it involves a sports arena) doesn't mean we agree with the Scalia or Thomas of the Institute for Justice on other matters. Just because people in 1790 needed a rifle to fend off bears or Redcoats doesn't mean they should have the right to an AK-47 without a background check or waiting period now.

Our views, too, may be irrelevant to the constitutionality of eminent domain laws. But the right to be heard in court is fundamental. And we don't see the slope, as it relates to challenging Atlantic Yards in the courts, as being as slippery as you do.

And just for the record, the litigation is not ours. While we share many of the views of DDDB and the litigants, NLG is a wholly separate entity.