March 14, 2006

The Lost Liberty Hotel.

John Tierney writes about the effort to take over Justice Souter's house by eminent domain to protest the Kelo case. (Limited access link to TimesSelect.)
[Keith] Lacasse, a local architect, [proposed] turning it into the Lost Liberty Hotel.

"Actually, it would be more like a bed and breakfast," Lacasse said. "We'd use the front of the house for a cafe and a little museum. There'd be nine suites, with a black robe in each of the closets."

So far Souter has not joined the local debate on the proposal, something that makes him fairly unusual in this country town near Manchester. The Lost Liberty Hotel has dominated the campaign debate and the pages of The Weare Free Press. There seem to be two main factions: those who oppose the Kelo decision and want to punish Souter by taking his property, and those who oppose the Kelo decision but want to leave him alone....

[A]s much as I admire Lacasse's plans for the Lost Liberty Hotel, at this point I think it would be overkill.

However the vote comes out today, Lacasse and his allies have succeeded in embarrassing Souter, and that's enough. ... [A] judge should be able to make a bad or unpopular decision without losing his home. But he does deserve a reality check, and Souter's neighbors have obliged.
I don't think they've "succeeded in embarrassing Souter." They've only tried to intimidate him, which is embarrassing to them. He decided the case based on the precedents, calling it as he saw it. To retaliate against him personally is to say that you want cases to be decided based on personal interest. And yet you think you're standing up for the rule of law. Incoherent!

65 comments:

Patrick Martin said...

Why is their real motive in seeking to build the Liberty Hotel relevant, Ann? Justice Souter and the others did not inquire into the real motives of the public officials and developers who wanted to take the property from the landowners in Kelo. Under the law as the Supreme Court set forth, then, their motive is irrelevant.

I don't see this as intimidation at all. They didn't threaten to torch his place. They simply decided to see if the law really does apply equally to all, and to bring home to judges (and surely if any judge could be accused of living isolated from the world with little knowledge of "real life", that judge would be Justice Souter) the consequences their decisions have in the world at large.

And this IS the real world result of Kelo, that any property at any time is subject to seizure by the government to be sold to developers who simply believe they can pay higher property taxes than the current owner.

AJ Lynch said...

I disagree Ann.

They succeeded by painting a picture of what could happen to one of the judges if they should happen to fall victim to eminent dumbain.

Souter was simply the convenient choice to use to make their case personal and ironic at the same time.

Dan from Madison said...

I have always wondered why they are picking on Souter - what about Ginsberg, Kennedy, Breyer and Stevens?

yetanotherjohn said...

Patrick Martin has it right.
Violence against Souter would be intimidation. Showing Souter the unintended consequences of a poorly reasoned legal decision is not violence but a wake up call.

I can't see anything here but applying the law the supreme court made on what members of the supreme court might find dear to them.

By your argument, that people should not seek to apply the new law (I don't see the clarity of precedent that you do, I see this as a definite extension of previous cases) would be to say that the supreme court should be insulated personally from their decisions.

Do you want to stay with that argument counselor or switch to one that might win?

Richard Dolan said...

Patrick Martin has it exactly right. Nothing serves the democratic process better than the application of the rules devised by rulers first and foremost to themselves. This is also the reason why Congress's frequent decision to exempt itself from the rules applied to all others was always an egregious affront on many levels. It's remarkable how rarely that principle of equal treatment has been applied by those in power to themselves. The exceptions -- think of the sad fate of Iphigenia on the beach, for example -- are sufficiently rare that the ruler who has done so is lauded thereafter evermore.

In this case, Souter and colleagues devised a constitutional rule fair enough to apply to the Kelos, and thus by definition fair enough to apply to him. What's wrong with that?

TioMoco said...

Sauce. Goose. Gander. Questions?

J said...

"I don't think they've "succeeded in embarrassing Souter." They've only tried to intimidate him, which is embarrassing to them."

You do a great job here Ann, but this is the academic bubble talking. Maybe more explanation of the reasoning is needed, but nearly all of the public, regardless of their position on the political spectrum, thought the Kelo decision was insane. Interesting quote in the last paragraph - why shouldn't a judge be punished for making a bad decision?

Troy said...

The Lost Liberty guys have looked at the legal precedents and have made a development decision calling it as they saw it.

Decisions have consequences -- isn't that one reason why Fed. District Judges, et al. have residency requirements to live within the District in which they serve? Some political pressure on a judge is great -- needed even. Souter is a citizen -- let him live with his decision. The crassness of the motive did not matter in Kelo -- it won't matter in Souter v. Lacasse dba Lost Liberty Hotel

L. Ron Halfelven said...

You don't have to be in an academic bubble to believe that legal questions should be decided according to legal criteria, and that people who don't know enough about what the law is to be entitled to an opinion should refrain from having one. Though as citizens, they can and should have opinions about what the law ought to be.

From the facts that Lacasse is from New England and is dragging out a joke for so long after it stopped being funny, I can draw but one conclusion: he's a writer for Family Guy.

Wade_Garrett said...

Why shouldn't a judge be punished for making a bad decision? Because that's not how this country WORKS. George Bush invaded the wrong country, but that doesn't mean that we should invade his ranch. South Dakota law makers, and Antonin Scalia, oppose abortion, even in the cases of rape an incest, but that doesn't mean we should rape their daughters so that they can see what it feels like.

Icepick said...

Terry, a key distinction between the scenarios you outlined and the one with Souter's house is that invading Bush's ranch and raping someone would both be illegal. In the case of Souter's house, opponents of Kelo are trying to seize Souter's property through completely legal means.

miked0268 said...

>>>Patrick Martin has it exactly right. Nothing serves the democratic process better than the application of the rules devised by rulers first and foremost to themselves. <<<

Yeah but, isn't the whole point of the decision that it is the responsibility of state legislatures to prevent eminent domain abuses, not the courts? Court decisions are *not* a part of the democratic process.

Isn't there already legislation underway in a couple of state legislatures to clarify the eminent domain situation?

As a non-lawyer I would have thought that a case could be made that the words "public use" in the constitution could be construed to exclude using eminent domain for private development purposes. However, even if you disagree with Kelo, there is nothing in it that prevents state legislatures from accomplishing the same thing as the opposite ruling would have.

Now, if you had state legislators voting against such laws, trying to condemn *their* personal property would make alot more sense.

HaloJonesFan said...

Oh for God's sake!

The Kelo decision affirmed the Constitutional power of Eminient Domain. Whether you like ED or not, it's in the Constitution. Defining limits to ED, and deciding whether or not it's appropriate to invoke it, are matters where are entirely the province of the ELECTED LEGISLATORS.

I am amazed at the number of people advocating retaliation against judges because of a decision that they don't like. It sickens me to learn that people see nothing wrong with that.

twwren said...

The question: is "retaliation" through legal process; indeed through a practical application of a rule of law one disagrees with, a legitimate and effective form of dissent?

In this case, Yes, Maybe.

Wade_Garrett said...

And it was legal to rule that the town of New London could condemn Kelo's property. Simply because you disagree with something doesn't make it objectively wrong. Courts exist to settle disputes, and every case has a winner and a loser, and reasonable people realize that. If you ask me, these protestors look like jackasses. This sort of urban redevelopment happens all the time. Kelo and others like her were fortunate enough to be white, which means that national interest groups were more willing to take up their case. It was a lower-working class neighborhood. If it was a lower-working class black neighborhood, it would not have provoked this sort of righteous outrage among all these white people in California and New Hampshire.

Too Many Jims said...

"The Lost Liberty guys have looked at the legal precedents and have made a development decision calling it as they saw it."

Let's not stoop to lying about these guys and making them out to be saints. They did not make a "development decision" they made publicity decision.

When a developer wants to develop land that they do not own, what is the first thing they do? Attempt to buy the property from the then current owner. No developer in his/her right mind would start first with the ED process. In most states, before the ED process begins, the government would need to demonstrate that they made an offer to buy the property.

Here is why I find what they are doing offensive. They are upset about a supreme court decision which they feel abrogates their constitutional (and, perhaps, natural law) rights. What is their proposed remedy? Abrogating the identical right of someone else. Incoherent, indeed.

Smilin' Jack said...

Don't think of it as retaliation. Think of it as a particularly effective (and perfectly legal) form of political speech. The purpose is to send a message regarding the inappropriate use of eminent domain. The retaliation aspect is just (yum!) gravy.

david bennett said...

The thing I don't understand is why the rightwing is bothered by such use of eminent domain and at the same time cheered a president who used it to make is fortune and then insisted he had no duty to pasy the people whose land was seized the full value of the property.

http://www.bushfiles.com/bushfiles/SweetheartDeal.html

I guess because the president has *said* he opposes the use of eminent domain for provate interests actually *using* it for his personal gain is ok.

twwren said...

David Bennett:

The thing I don't understand is why progressives are not bothered by a decison that favors Wal-Mart over the great unwashed?

DRJ said...

Jim @ 11:38 -

This is a development decision because enough people are willing to give money to see this project become a reality. That's capitalism, pure and simple. And yes, developers usually do seek to purchase property before instituting eminent domain proceedings, or at least they did because they had to do it that way. Because of Kelo, now they don't. Want to bet that now we'll see more eminent domain proceedings?

By the way, no one's rights are being abrogated least of all Souther's. Everything that's happening is perfectly legal.

Hey said...

But Ann, you have heartily endorsed a knowingly futile constitutional challenge against the military, one which was entirely misdirected as to who had the power to change the law that you did not like. So what's the difference?

Further, all of us right-wing crazies have a great example of what Kelo has enabled. Today's Daily News highlights how the village of North Hills is trying to take an elite private golf course and turn it into a public course for the exclusive use of village residents. http://www.nydailynews.com/boroughs/story/399128p-338179c.html

As to the "whiteness" of Kelo affecting the reaction, one should consider that it wasn't actually a bad neighbourhood, as well as the fact that the horrendous decision that sent us barrelling down the road to Kelo was Poletown. However much Poles have been discriminated against in the past, by 1981 no one was dismissing Poles for being "unwhite".

I love the Lost Liberty Hotel, as well as the point of applying unjust laws in unjust ways to those in power who have deemed them to be "legal". This is a tactic that should be applied much more vigorously, especially with respect to Congress, notorious for its desire to be exempt from its own rules. When elites are forced to live within their own rulemaking and judgements, then we will get better laws and court decisions.

Gahrie said...

Mr. Bennett,
president who used it to make is fortune and then insisted he had no duty to pasy the people whose land was seized the full value of the property.

Even a brief preusal of your link yields the following:

1) President Bush was a minority partner in the deal. In fact he had less than a 2% interest in the partnership. As such, he had very little say in how the partnership operated.

2) The city owed the money to the former landowners (not President Bush), and in fact paid them the extra money they were due by the court decision.

3) There is an argument to be made that the partnership (not President Bush) should repay to the city of Arlington the extra money that the city paid to the former landowners, however the city of Arlington has made no effort to recoup this money.

At best your comment shows willful ignorance, at worst it is yet another example of shameless distortion from the left.

Palladian said...

"The thing I don't understand is why progressives are not bothered by a decison that favors Wal-Mart over the great unwashed?"

Because far-left "progressives" think of Kelo as a paving stone on the path to the state control of private property.

"The thing I don't understand is why the rightwing is bothered by such use of eminent domain..."

I, for one, have certainly not ever suggested that Republicans are any more consistent or coherent about this issue than anyone on the left of the aisle. This is not a partisan issue (is anything, removing the blather, really just a partisan issue?); many people who consider themselves liberal, conservative and a million shades in between abhorred this decision. Whether the "Lost Liberty" people's stunt is a good thing, I don't have an opinion. I tend to hate political theater of this sort. I do wonder why they chose to pick on Souter. Some people here suugest he deserved it more than the other assenting Justices. On what basis do you make that decision?

DaveG said...

Souter is more than welcome to air his complaints in court. He is also free to petition his local legislature to enact more citizen-friendly ED laws. He is just a citizen like the rest of us, after all, which has been well and truly demonstrated by the Liberty Hotel developers. Too bad for him if he doesn't like the way normal citizens can be robbed at governmental gun point under existing precedent.

Jonathan said...

I'm not familiar enough w/ the eminent domain precedents to say whether the Kelo majority decision was compelled by stare decisis. There was a post, however, on this blog about a week ago regarding Justice Stevens' comment that his decision was mandated by the constitutional provision "for the public use." He also said that he didn't like the outcome because, purely as a policy matter, he'd rather let the market take care of these situations. Implicit in his comment is the reasoning that if one private citizen values land more than another (which for a private project like a shopping mall would correspond to how much the public values it), then the market would provide a mechanism for the transfer. That economic reality should affect the meaning of "in the public interest," because under that model nothing actually in the public interest should necessitate use of the eminent domain power. The one exception is where the land necessary for the shopping mall is owned by numerous landowners. In that case one of them could hold out for more than they actually value their property. But in that case the market is deficient, so it doesn't make sense as a policy matter to let the market work things out, so Justice Stevens' comment still doesn't make any sense.

Jacques Cuze said...

Not intimidation. Just a reality check. More judges and lawyers could benefit from having to live with the implications of their decisions. How many angels can we legally fit on this pin? How do we read the laws in a way to make law breaking legal? Ha ha ha, it's all a game to some with the winner having more power over the loser and others.

vbspurs said...

Sauce. Goose. Gander. Questions?

Whilst I agree with this, and appreciate the reasoning Patrick Martin used in his answer, it still feels retaliatory and petty.

Very very petty.

And dare I say it, banana republicanish.

Cheers,
Victoria

vbspurs said...

I have always wondered why they are picking on Souter - what about Ginsberg, Kennedy, Breyer and Stevens?

Because the Souter appointment is the one which gnaws at Conservatives the most.

Cheers,
Victoria

J said...

"You don't have to be in an academic bubble to believe that legal questions should be decided according to legal criteria, and that people who don't know enough about what the law is to be entitled to an opinion should refrain from having one."

Sorry my lack of deference to my betters annoys you Paul. Where did you get the idea I didn't want this case to "be decided according to legal criteria"? I suspect most law professors, even those who disagree with Kelo, are appalled with this sort of disrespect for the court. The general public isn't.

"South Dakota law makers, and Antonin Scalia, oppose abortion, even in the cases of rape an incest, but that doesn't mean we should rape their daughters so that they can see what it feels like."

Glad to see you're working on mastering Dilbert's rules of blog debate ( http://dilbertblog.typepad.com/the_dilbert_blog/2005/11/results_of_why_.html ). Why are you bringing the daughters into this? Shouldn't it be Justice Scalia and the lawmakers themselves? Do they have the right to get an abortion if they become pregnant? Breastfeed in public if they decide to keep the baby? (For the record, I'm fully in favor of restricitng the right of men to breastfeed their babies in public. Call me opressive, but that's how I feel).

J said...

"To retaliate against him personally is to say that you want cases to be decided based on personal interest."

I disagree - I'd say it's to acknowledge that, where personal interests are a factor, decisions are based on exactly that. Promotion or imposition of ones personal beliefs and views is a considerably more powerful motivator than material gain.

mcg said...

halojonesfan:

The Kelo decision affirmed the Constitutional power of Eminient Domain.

Oh, what nonsense. You'd do better to simply agree with Ann on this one... Souter, Stevens, Kennedy, Ginsburg, and Breyer were arguably just following precedent. But don't insult our intelligence that Kelo is wholly supported by a reasonable reading of the Constitution.

It is only due to a long string of court precedents that have incrementally redefined "public use" to mean "private use, actually, but since it happens to bring in more tax revenue, we'll go with it." The end result is that Kelo is quite obviously a horrible decision but one that was understandable if you're bound and determined to elevate court precedent to equal status with the Constitution.

Heck, just ask the liberal's sudden hero of the Court, Sandra Day O'Connor, who wrote one of the dissents: To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

Pogo said...

Sorry, but I cannnot raise any sympathy for Souter, nor am I even the least bit embarrassed by the Liberty Hotel performance art.

If people do not have a right to their own property, then people have no rights at all. it is the most fundamental right, the only one that protects citizens from the Leviathan State.

Absent predictable and reliable property rights, most countries devolve into real banana republics like Cuba, corrupt Mafia states like Russia, or kleptocracies like Nigeria.

In my view, there is no other right worth fighting for. If you can't secure this right, all rights are eventually lost to the State. We then return to Rome or medieval Europe, where rights are whatever the soveriegn deigns to give you, revocable on a whim, and dependent on one's status in society.

Men have died for this idea. Souter should lose his home for it.

c said...

I don't think it is appropriate for Souter to hide behind precedents. The Supreme Court can overturn precedent, and they should have overturned this one. The precedent cited changes the words of the consitution from "public use" to "public purpose"; now that is incoherent.

I don't think that Lacasse said that he was standing up for the rule of law. He is standing up for the US Constitution, and using the rule of law to do so. I don't think that Justice Souter fully grasped the power that he let the legislative branch seize. Lacasse is trying to enlighten Souter.

Lacasse is also demonstrating the main tenet of the rule of law, that the laws apply equally to all people. He is not retaliating against Souter; he is making a point. It is a point that most people understand - actions have consequences. What is incoherent about that?

twwren said...

Palladian:

I pretty much agree with your post as to its take on conservative and liberal reactions to Kelo. I was reponding to Mr. Bennett's post. As a conservative, I am not concerned at all by the decision from either an interpretive or results point of view. I watch and read with bemused detachment the Souter affair.

As a side note, by far the best commentary on Kelo is the first thirty pages of "A Hitchhiker's Guide to the Galaxy".

Palladian said...

"Men have died for this idea. Souter should lose his home for it."

Again, why Souter? Why don't we take the homes of the other 4 assenting votes? I know he's really irksome to conservatives because he was appointed by a Republican president, but Kennedy was also appointed by a Republican president.

mcg said...

Uh, perhaps because his house happened to be best suited for taking?

whit said...

Overkill? That's what happens to the Supreme Court in Columbia. This is a measured, legal response to one of the worst Supreme Court Decisions ever.

"A judge should be able to make a bad or unpopular decision without losing his home."

What about some sympathy for the victims of his idiotic decision?

Pogo said...

Why Souter? Why not Souter? It has to start somewhere.

Souter's home is at risk- as is the home of anyone that lacks a huge tax base or political connections. The purpose is to show officials like Breyer that words have meaning, and real effects.

If a private developer can find a use for your property that increases city income, and can get the government to agree, then the fact that the developer hates you and is doing the whole thing out of spite is irrelevant. That's why Kelo is so bad: the government has just nullified property rights, and transferred all decisions about ownership to the State. When politics decides property, there can be no meaningful freedom.

?"A judge should be able to make a bad or unpopular decision without losing his home."?

Partly true; but far more important, and serving as a basis for that desire, is the notion that a citizen should be able to make an unpopular or unprofitable property decision without losing his home.

Pogo said...

"The purpose is to show officials like Breyer Kennedy, and Ginsburg ..."

whit said...

This is a case that should be non-partisan. I wonder how many people support the Court's decision because of the alignment of the Court. Is it perceived as a left versus right issue?

Too Many Jims said...

"This is a development decision because enough people are willing to give money to see this project become a reality. That's capitalism, pure and simple."

No, when "enough people are willing to give money" to see a project get completed it is not capitalism. I suspect (somewhat ironically given that many of the proponents of the hotel are apparently adherents of Rand) it is closer to "altruism". Capitalism is where someone offers goods and services that are demanded by a market. There is no evidence that that is the genesis of this project.

"And yes, developers usually do seek to purchase property before instituting eminent domain proceedings, or at least they did because they had to do it that way. Because of Kelo, now they don't."

Kelo said no such thing. The procedural requirements that states impose on eminent domain proceedings were not really at issue in Kelo. New Hampshire, for example, requires that the relevant governmental entity make an offer to purchase before the land is condemned. I would be surprised if a developer exists who would prefer the ED process to purchasing the property from a willing buyer.

"By the way, no one's rights are being abrogated least of all Souther's. Everything that's happening is perfectly legal."

I don't think I suggested that anything these people were proposing is "illegal". In fact, I believe that if they really want to, they can meet the statutory and constitutional requirement to do this legally. That said, that does not mean that "rights" are not being abrogated. The proponents of the hotel talk about "natural rights". I take this to mean rights that transcend a legal framework. For example, one may argue that all humans have a " natural right" to life, they may recognize abortion or capital punishment as "legal" but nonetheless an abrogation of rights. I don't think one can consistently hold the positions (1) that humans have a "natural right" to ownership of property free from takings as contemplated by Kelo and (2) that a human should be deprived of his property by having his property taken as contemplated by Kelo.

Gahrie said...

I don't think one can consistently hold the positions (1) that humans have a "natural right" to ownership of property free from takings as contemplated by Kelo and (2) that a human should be deprived of his property by having his property taken as contemplated by Kelo

Jim, what is going on here is something akin to civil disobedience. They are taking the decision to a logical extension in an effort to show what is wrong with the law.

How often has ED been used to take property from the wealthy and powerful? I'm not aware of a single case. Perhaps if ED is used against the wealthy and powerful, rather than for them, some progress can be made in protecting property rights for all of us.

Too Many Jims said...

I get that they are trying to show the absurdity of the position, but it is comletely wrong to compare this with civil disobedience.

In civil disobedience, one believes there is an unjust law, that is, a law that is contrary to the natural order (or perhaps, civil order) and willingly subjects herself to the immoral law so that its absurdity can be brough to light.

In this case, these people think there is an immoral law and they want to protest it by making sure the law is enforced against someone else.

I get what they are doing but championing these hucksters and snake oil salesmen as heroes is ridiculous. Comparing what they are doing to MLK or Ghandi is, well I won't complete that thought.

mcg said...

Well, now you're the one being absurd. "Civil disobedience" is not the same as "what MLK and Gandhi did." There are plenty of acts of genuine civil disobedience that don't measure up to what those two heroes did, in substance or method. So don't go putting words in people's mouths.

Randy Rager said...

He wrote that decision, let him try and live by it.

I don't think that's petty, or intimidating, at all. I think it's just plain justice.

Too Many Jims said...

"Civil disobedience" is not the same as "what MLK and Gandhi did." There are plenty of acts of genuine civil disobedience that don't measure up to what those two heroes did, in substance or method.

Fine, point taken.

It still remains true that this is not "civil disobedience". There is no civil law they are disobeying! Comparing it to civil disobedience, tortures language. If anything it is "compulsive civil obedience".

Too Many Jims said...

"He wrote that decision, let him try and live by it."

He did? I am sure Stevens (or his clerks) will be surprised to learn this.

Gahrie said...

Just for the record, what I actually wrote was "something akin to civil disobedience"

If you are going to make semantic arguments, it's important to get the quotes right.

Too Many Jims said...

I caught that you said akin but I think this is akin to civil disobedience as oranges are akin to apples.

Are these guys risking jail or criminal penalties or civil penalties by engaging in this course of action.

They aren't even breaking the law which is a fundamental part of civil disobedience.

Wade_Garrett said...

The Lost Liberty Hotel is a stupid idea. Anybody who believes that eminent domain is wrong, but believes it should be used to take the land of EVERYBODY who thinks it CAN be used, is a hypocrite.

Similarly, all conservatives who criticize so-called "activist" who overturn acts of the legislature, but WANT the courts to overturn acts of the legislature when doing so would happen to further their own policy goals, are similarly hypocrites. Has Scalia EVER ruled against a property owner in an eminent domain or regulatory takings case? One can easily argue that he is as outcome/policy determinative as any left-leaning judge, no matter how hard he tried to frame his arguments as being strict interpretations of the Constitution. IT SAYS RIGHT THERE IN THE CONSTITUTION THAT NEW LONDON CAN'T TAKE KELO'S LAND!

dick said...

Strange comments here today.

I lived in Weare at the time Souter was named to the Supremes. Unless his home is in a lot better condition today than it was then, and I do not believe that is the case, then his home is in far worse shape than the Kelo homes were and his neighborhood while decent is not exactly a Park Avenue/Upper Fifth Avenue neighborhood. As such it fits the same type of socioeconomic level as the Kelo homes, maybe a little higher because New Hampshire home prices are a little higher than New London home prices.

I wish them luck in taking the home because I do think that sometimes the Supremes really do not interpret what is said in the cases with the reality of the world today. I think in this particular case they have really twisted the case to fit the result rather than fitting the result to the case. I think J P Stephens even admitted this in his speech in Las Vegas when he said he would rather not have had that result. Simple. Produce the result that really fit the case and get it over with. If the Supremes can't be trusted to do the right thing with the cases that are brought, and in this case I don't think they did, then who can we go to next? I know for the future cases we can go to the legislature, but that doesn't help Ms Kelo, does it.

Bruce Hayden said...

I think that one big reason to have targetted Justice Souter is his emotional attachment to this house. While most Justices ultimately go native, putting down D.C. roots, he has stuck with his New England roots and maintained this house for sentimental reasons.

And that is part of the problem with Kelo, EM, etc. In many of these cases, those ultimately dispossed have strong emotional ties to their properties, much stronger than the money being offered, even through condemnation.

Thus, I think it likely that the other Justices voting with Souter would be happy with taking the money and buying a slightly nicer house a mile away. That is the rational economic deccision. And in that case, ED is just fine.

Because of Justice Souter's apparent sentimental attachment to this house, well beyond its economic value, and how this is akin to the attachment of many of those dispossed unwillingly through ED, I think that this is a fairly appropriate gesture.

Rob said...

I believe most of the comments here are quite absurd. If you have a problem with Kelo simply change your state law (see Oregon).

If you want Supreme Court Justices to be isolated from politics you should abhor this gesture.

If you want Supreme Court Justices to make decisions based on protecting their own property applaud it.

If you are an originalist ask Scalia and Thomas about regulatory takings.

Sammler said...

The Lost Liberty Hotel attempt should serve less to intimidate Mr. Souter than to belittle him. It presumes that he has so little grasp of consequences that only an attempt to apply a bad policy directly to him can make him understand.

I don't understand why people are calling it "retaliation". Surely Mr. Souter would have been reimbursed for the value of the property?

Simon said...
This comment has been removed by a blog administrator.
Simon said...

Rob said...
"I believe most of the comments here are quite absurd. If you have a problem with Kelo simply change your state law (see Oregon)."

Once Roe is overturned, I presume you will tell people "if you have a problem with [case overruling Roe] simply change your state law," right? Of course a state may offer more protections - in their statutes and their constitutions - than are offered in the federal Constitution, but the point of putting something into the federal Constitution is precisely to remove it from the democratic stage. That is why liberals defend Roe: because for as long as abortion is (falsely) elevated to the level of constitutional law, no state may take legislative action on abortion. Kelo stands for an equal proposition: of course states may now act to protect persons against emminent domain, but the whole point of the right being protected in the federal Constitution is to prevent them from making the wrong choice by taking the choice out of their hands.

You're essentially saying that Kelo is okay because the very people whose potential abuse of power the takings clause has come to govern are now in a position to delare whether or not they are bound by it.

Bruce Hayden said...

Apparently, some bad news for those trying to have Justice Souter's house condemned, and good news for him. According to the Boston Globe, his neigbors voted 2-1 against the condemnation.

Simon said...

The story Bruce posted is quite odd - one of the LLH guys is quoted as saying "[the defeat showed the] Lost Liberty Hotel [backers] lost to big government. So we'll take the battle to end eminent domain elsewhere." The battle to end emminent domain? I thought the battle was over the fifth amendment, applied to the states by the fourteenth amendment, sets substantive restrictions on the use of emminent domain? I'm not on board with wiping out emminent domain, nor even its bastard cousin, the Epstein thing. My only concern is the process.

Too Many Jims said...

And I would add that it is odd that he said the backers "lost to big goverment." A democratic vote of small NH village, now counts as "big government"?

Wade_Garrett said...

For those of you who want to blame all of this on Justice Souter, I would suggest that you first listen to the oral arguments online and read the text of the opinion itself. If you do so, you'll see that the use of eminent domain for partisan purposes (such as taking a largely conservative neighborhood and giving it to a democratic developer) or using eminent domain as a means of dispensing political favors or dishing out political retribution is unconstitutional.

Rob said...

"You're essentially saying that Kelo is okay because the very people whose potential abuse of power the takings clause has come to govern are now in a position to delare whether or not they are bound by it."

I did not make myself clear. I'm abivalent about whether Kelo is "okay" as a matter of constitutional law. I think there are good arguments on both sides.

I'm just saying there is actually a simple endaround Kelo. A vast majority think that it is wrong as a policy matter. As such, it should not be difficult to pass state laws limiting the practice. In my mind this is much more effective, intellectually coherent, and efficient than condemming Justice Souter's property.

Of course, when Roe is overturned as it should be I will say the same thing. I believe the Constitution does not, in many cases, compel good results, but it leaves a pretty wide playing field for democratic action.

Thorley Winston said...

How often has ED been used to take property from the wealthy and powerful? I'm not aware of a single case. Perhaps if ED is used against the wealthy and powerful, rather than for them, some progress can be made in protecting property rights for all of us.

Actually you have that backwards, prior to Kelo the controlling eminent domain/public use case was in which the SCOTUS (including Justice O’Connor) upheld a Hawaii statute which used eminent domain in the name of “land reform” (basically redistributing land from the wealthy to the less wealthy) with very little in the way of outrage in part because the beneficiaries would be lower and middle class families who then had a greater chance at home ownership.

Previous cases were largely about "slum clearance" in which "blighted" areas were condemned in order to develop them in more economically beneficial manner. However none of the cases in which property was taken from the disadvantaged or the wealthy seem to invoke as much public outrage as Kelo which woke a lot of people up to realize that when you allow government to threaten private property rights, it can and does impact middle class families as well.

dreamingmonkey said...

Of course it's retaliatory. The whole point of this fiasco is "well, how would you like it if YOU were the one in the sights of eminent domain?" But judges are supposed to interpret the law, not decide what they would want to do if they found themselves in an unpleasant situation. That's like saying that abortion cases should be decided by pregnant 14 year olds.

I find this Lost Liberty thing very unnerving. The conservative party has been cashing in on the populist appeal of anti-judicial sentiment for a long time, and the thing is snowballing. Someone in the comments above actually referred to Souter as "our ruler." I hope this turns into some kind of constructive discussion of the function of judicial review, but sadly right now it is just another fox news hatefest.

dreamingmonkey said...

One more thing. If a Justice's home was in fact the subject of eminent domain proceedings at the time that Kelo came to the court, that judge would have been required to RECUSE him or herself so that their personal feelings about eminent domain would not have an effect on their decision on the case. But apparently the Lost Liberty people do not believe in the recusal process but instead believe that that interested judge should be allowed to vote (and in particular they apparently believe that such judge would have voted with the dissent). Perhaps the interested judge's vote should have more weight than that of disinterested judges, since that judge will recognize that, as someone else put it above, "words have consequences," or whatever.

TomDPerkins said...

Terry said...

"For those of you who want to blame all of this on Justice Souter, I would suggest that you first listen to the oral arguments online and read the text of the opinion itself. If you do so, you'll see that the use of eminent domain for partisan purposes (such as taking a largely conservative neighborhood and giving it to a democratic developer) or using eminent domain as a means of dispensing political favors or dishing out political retribution is unconstitutional."

While true it's beside the point. ED is intened to permit property to be taken for public use, not the very abstruse "public benefit through increased tax revenues" which Kelo and it's precedents endorse.

The Kelo case had an unquestionably unconstitutional outcome, both by originalist standards and by the "constitutional moment" standard.

I think it cannot be defended on the grounds of it's being constitutional by the intellectually honest.

Yours, TDP, ml, msl, & pfpp