February 6, 2006

"Justice Souter did his job and we should be proud of it, whether we agree with it or not.”

The attempt to take Justice Souter's house by eminent domain has failed, voted down by the townsfolk. Professor Bainbridge is sorry to hear this!

21 comments:

David said...

I can sleep at night now knowing that a simple appeal to our elected state officials to protect us from land-grabbing developers will save my home from becoming a parking lot!

WHEW! I was afraid the interests of the lobbyists supporting developers would trump my property rights for higher tax revenues from a casino where my house now stands.

word verification - gybdor

The first thing to go in your house before officials tear it down to build something else.

Smilin' Jack said...

This is disappointing. But let's move on...what about the other Justices who voted for the Kelo decision...don't they have homes?

Wade_Garrett said...

I've said before that I'm very familiar with the New London area and, on the facts of this case, thought the equities favored Kelo and her neighbors. Having said that, the opinion was entirely within the mainstream of takings jurisprudence. Why is adhering to precedent and deferring to the legislature the right move when they want to ban contraception and abortion, but a sign that our country is going to hell when it results in this sort of a takings?

I say, good for the people of Weare, New Hampshire, for seeing this movement for what it was. The idea that a man from California would stand up for the sanctity of landowner's rights by flying to New Hampshire and attempting to talk the people there into taking the home of a Supreme Court Justice is ironic and absurd on any number of levels.

Nick said...

While I think taking his home would have almost been just desserts... it would have been goign over board, and in reality going after the wrong person.

Why not have a petition go around New London to have a general vote on the ballot to take the council members homes by eminent domain?

But more to this story, I think there is a general feeling that federal justices are not accountable for their decisions, and that there is a growing backlash to that end. While a lot of lawyer types seem to think lifetime appointments are set in stone and should never change... I think its something worth considering.

If we can pass the 17th amendment... we can certainly look at an amendment to change the terms of federal justices.

Glenn Howes said...

I guess we wait for the day when Justice Souter is less popular and then take his house; he having established that who possesses a house is not an individual right but rather a matter of democratic action. Maybe next year he'll vote against the Pledge of Allegiance...

dick said...

Terry,

Because the ban on contraception and abortion is not the same thing as the government throwing people out of the homes they have maintained and lived in. The individual property rights should have some meaning and the courts should protect those rights. In this case they clearly favored the legislature rather than the people. In doing so they have left up for grabs the homes of everyone that the governments choose to redevelop for whatever reason. Where does this stop? If I get a majority of the city council to determine that the next block should contain apartment blocks regardless of what the residents want, then the courts would defer to the legislature and we would have apartment blocks and more of a tax base. Good for the economy. Good for the fiances of the city. Unfortunately it would not be good for the lifeblood of the people and their ability to trust their local government. Whose ox is gored next? and how do we stop the goring? If you can't depend on the courts to protect the people from the encroachments of the government and its developer-friends, who can we depend on?

You can say all you like about the judicial standard of supporting the legislature but the court and the legislature is supposed to represent the people and the laws protecting them. In this case both fell very far down and now the people are starting to stand up and say enough is enough. If they do can we depend on the courts and the legislature to recognize the rights of the people or are we going to keep on letting the bought and paid for legislators develop us right out of our homes.

Duffy Nichols said...

Terry and Dick have just nicely encapsulated the entire debate on this issue. Give or take, everything else on this topic is fancy dancing. Is it to much to ask that our legislators/judges to be equally incisive?*

*For what it's worth, I take Terry's position.

Bruce Hayden said...

While Kelo may have been in the mainstream of takings jurisdiction, was that where such should have been? I think that a lot of us would say no, and that the furor at the case is indicia that takings have moved to a place that is beyond what many, if not most, Americans think it should have.

I think that maybe part of it is that in many takings cases, the sides are not evenly matched. Most often, the party pushing for the takings is much better financed than those opposing such. So, no surprise, that the jurisprudence has moved possibly too far in that one direction.

michael a litscher said...

Nick: Why not have a petition go around New London to have a general vote on the ballot to take the council members homes by eminent domain?

Personally, I'm surprised the council members homes who voted for this travesty haven't been burned to the ground.

Charles said...

I just keep wondering... they take my house that I have owned for years, don't pay me fairly for it. And if I do something unfair back, I will go to jail. Too bad the majority of people at the meeting were afraid... but of what? Could they see their homes next or just felt things had gone far enough? Wasn't there some small comment in the Constitution about when government gets out of control?

RogerA said...

I only hope the supports of Kelo have their houses taken under similar circumstances; herhaps for a casino, a strip mall, or some other worthy economic development undertaking--I am sure they will surrender their property quietly, accept the lowball offer they get for FMV, and praise all five justices who took part in this decision.

Yeah Right

SippicanCottage said...
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SippicanCottage said...
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Wade_Garrett said...

Sippican - This is a basic Con Law I issue. Who is going to have the final word - the legislature, who is democratically elected and accountable, or the Court, who is not elected and unaccountable, but who is also free from political pressure? The Court has a long history of deferring to the legislature in takings cases, which are enormously fact-determinative.

If you wanted the court to break with at least 14 decades of precedent in takings law to rule in favor of Kelo, then I would REALLY think twice before you use the words activist, unaccountable, unelected, or activist in a negative way again. Those words are thrown around far too lightly, without any thought behind them.

David said...

Hey Sipp!

Don't hold back! Tell us how you really feel!

Funny stuff. Sounds suspiciously like a Master's Degree program at Harvard Business School.

Word verification - rwfzzyo

The warm feeling I am not getting over Kelo.

SippicanCottage said...
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ShadyCharacter said...

Terry, it's simply dishonest to claim that Kelo didn't depart from prior takings jurisprudence insofar as it expanded the definition of "public use" to include private development that might be more economically efficient (whatever the hell that means) AKA what any two-bit developer can bribe a city council into approving.

RogerA said...

The longer I live the more I think the "great books" (however defined) should be required reading--It seems to me that this issue re Kelo, legal punditry aside, boils down to a simple question of justice--its the same question Plato wrestled with in the Republic--

I has become increasing clear to me that the legal process defines justice as process--that is following precedent, mashalling evidence, ensuring that both sides get a reasonable hearing--and as long as that "due process" is followed, then justice is done.

Regretably, however, that may not satisfy what many in the public see as justice as outcome--I mean irrespective if justice is served with respect to process, what is the outcome about, and does it resonate with the public.

I am increasingly led to think it is this gulf that separates the legal definition of justice defined as process, from the more general,and admittedly visceral reaction to justice as outcome.

Am I totally off base in my assessment? I really would like to hear from practitioners of law.
Kelo really seems to encapsulate my particular concern.

Wade_Garrett said...

Sippican - I'm sorry, Dred Scott is relevant HOW?

Rogera - I think what you're getting at is "substantive" due process. That's what the majority in Roe v. Wade used to justify its decision - the law banning abortions had procedural due process, but substantively, the state should not have the power to pass this law, so we strike it down. Substantive Due Process has gone in and out of fashion over the years; Justices like Scalia and Thomas claim that, because it isn't in the Constitution, it shouldn't exist at all. Then again, if you believe everything they say, they are two of the only people who know what the Founders REALLY meant when they wrote the Constitution . . . In the opinion of a lot of legal scholars, substantive due process has been the basis for a lot of good opinions and a lot of bad opinions over the years.

Shady character - the Supreme Court has been taking "public use" to mean "public purpose" for a LONG time. Oliver Wendell Holmes wrote quite a bit about how the distinction is meaningless.

dick said...

I for one would like to know how taking property and turning it over to private developers makes it a public use or a public purpose at all. If New London were going to do the developing, then maybe it would be a public use or purpose. In this case New London is not the one doing the developing. How then is it a public anything at all. Is the public going to get first dibs on the profits made from the development? Is the public going to get to determine just what the developer does with this windfall he is getting?

In particular since apparently the developers are backing off from the property because of the bad publicity involved, is it not incumbent on the city of New London also to back off on what is no longer developable and hand the property back to the owners who were deprived of it by the high-handedness of the city government?

SippicanCottage said...
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