January 23, 2006

Rallying against Justice Souter.

The Boston Globe reports:
Activists who want U.S. Supreme Court Justice David Souter to pay a personal price for ruling New London, Conn., could seize private property for a development project rallied Sunday in Souter's small hometown, arguing the town should take Souter's home to build a hotel....

[Organizer Logan Clements of Los Angeles] was greeted by rousing applause from about 60 people who attended Sunday's rally, some coming from as far away as Texas and Pennsylvania.

He said the five Supreme Court justices who sided with the Connecticut city on the eminent domain controversy "shot a hole in the Constitution." He said opponents should organize nationwide and vote officials out of office if they push similar projects.

Doug Schwartz, of New London, Conn., urged the crowd on. He said eminent domain problems have plagued the city for decades.

Clements said he and volunteers gathered 188 signatures Saturday in support of having the town take Souter's home so the property could be turned into a hotel -- the "Hotel Lost Liberty".

Souter has declined to comment.
I've got to imagine that the kind of people who live in Weare, New Hampshire don't like wild-eyed activists from Los Angeles and elsewhere coming to town and staging rallies. And physically impinging on a Supreme Court Justice is no way to demonstrate a concern for rights. You may think it's cute and you can get your publicity, but I'm writing this one down on my list of self-defeating protests (right after this one).


Simon said...

It's one of those things that, at first glance, seems a little silly. But when you think about it, it is actually quite an effective way of highlighting the potential for abuse created by the Kelo majority.

It perhaps makes little sense that it is Justice Souter rather than Justice Stevens who has been targeted, but perhaps Souter was the only one who owned targettable property.

I'm ambivalent about this one. I'm not going to cheer them on, but I'm certainly not going to decry any efforts to demonstrate just how absurd a ruling Kelo was.

Duffy Nichols said...

I'll cheer them on, and I'm not sure what is self-defeating about this. Even if he doesn't get a case of his own medicine, he might get a whiff of it--and my guess is that this is the protestors' goal.

HaloJonesFan said...

Yes, and the Justices who were in the minority on Roe v. Wade should be raped.

Simon said...

HaloJonesFan -
And this would accomplish precisely what? Quite aside from the important point - which is that anyone who advocates anyone being raped should have their nuts cut off - all of the Justices in Roe, on both sides were male, and all are dead. Neither males nor corpses can get pregnant.

The comparison is silly, in poor taste, and inapt.

bearbee said...

Northerners went down South to assist in registration drives,
civil rights marchers went to Chicago and Cicero, Viet Nam war protestors descended on Chicago, Cindy Sheehan and others picketed in Crawford TX, marches on Washinton DC and vigils outside the White House are frequent.

I don't regard it as cute.......seems to me to be democracy in action

If impinging becomes a question of public safety, threat of violence, destruction of property or invasion of private property then the protest needs to be limited.

Jake said...

"I've got to imagine that the kind of people who live in Weare, New Hampshire don't like wild-eyed activists from Los Angeles."

They like it enough to put it on the ballot by signing a petition. It will be voted on in the next election. I believe it will win as the Supreme Court's legislation is tremendously unpopular all over the US.

gj said...

As with Roe, if enough people don't like this decision, they should pass a constitutional ammendment. Harrassing a Supreme Court Justice -- or seeking to change the court rather than the constitution -- isn't a healthy way for a society to deal with constitutional issues.

SippicanCottage said...
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Simon said...

"As with Roe, if enough people don't like this decision, they should pass a constitutional ammendment."

I've seen this argument made from time to time: that it isn't really so much of a problem that the Supreme Court is busy writing a new Constitution for us, because if the people really don't like it, they can "simply" pass an amendment.

It is true that in a statutory case - say, if Congress disagrees with Gonzales v. Oregon - it can pass legislation to moot that decision. But the bar is considerably higher for amending the Constitution; yes, of course a sustained majority can amend the Constitution, but there is a grossly asymetrical nature to a situation where what can be wrought by five Justices can only be undone by three-quarters of the states in concert with supermajorities of both houses of Congress (or, as an alternative, the potential suicide pact of a new Constitutional Convention called by two thirds of the states).

To suggest this as a normative argument is to grotesquely subvert the Constitution by inverting it. The Framers made it difficult to amend the Constitution; the Supreme Court is supposed to be the defender of the Constitution, but to do so necessarily places it in a position to do great harm, and do great harm it has. It is, of course, the age old problem: qui custodes custode. The most controversial decision of our time is Roe, yet in over three decades, neither side has been able to marshall sufficient force to legitimize or repudiate the decision by amending the Constitution, despite the easy bandying of majoritarian claims. If even this decision - still unsettled after so many years - cannot yield an amendment, how can the possibility of reversal by amendment be taken any more seriously as a check on the Supreme Court than impeachment? The system you describe is neither democratic nor constitutional: it is essentially rule by lack of revolution. If the Constitution were easier to amend, the power of a rogue Court might be less of a concern - but then, if the Constitution were easier to amend, perhaps there would be less concern on the part of the Court to stamp their views on it.

Simon said...

Oh, and:

Harrassing a Supreme Court Justice -- or seeking to change the court rather than the constitution -- isn't a healthy way for a society to deal with constitutional issues.

I see. Seeking to change the court other than by the means specified in the Constitution isn't "a healthy way for society to deal with constitutional issues" - but the Court bypassing Article V and CHANGING the Constitution is "a healthy way for society to deal with constitutional issues"?

What world are you living in? Try to imagine, for a moment, that the Hamdi plurality had gone a little further - as far as Justice Thomas, for example. How far would the Court have to go before you'd be less sanguine about its abuse of power?

Michael H said...

2000 years ago, a teacher named Jesus scaldingly rebuked the legal experts of his day because they piled interpretation upon interpretation until their interpretation of the law bore no resemblance to that which was originally handed down. It seems we are in the same sort of situation here: an interpretation here, an intepretation there, throw in a little stare decisis (because stability is important, you know, even if it's based on wrongheaded rulings), and we're so far from the intent of the constitution that we've stood it on its head. How can anyone actually think that the founding fathers would have thought they were putting in place a legal framework to allow big-money interests to confiscate private property for private economic purposes? The Lost Liberty Hotel seems like a great project to illustrate the real-world effects of our legal system drifting so far from its moorings.

dick said...

As a former resident of Weare, NH (I lived there while Souter was in residence as the judge in that district) what will happen is that the townspeople at their annual town meeting will discuss the motion for and against taking Souter's home and will probably vote against it. The townspeople are fiercely in favor of a man's home is his castle and while they may hate the position Souter took his home there is his home and they will probably not vote in favor of taking it. Weare is not a backwoods kind of place. It is very pretty and has a lot of woods and hills an so forth but the people take their votes at the annual meeting very seriously and they have real debates there. It is the best of the proverbial New England before the idiots took over so much of the place. The people like to take care of their own problems there and also make up their own minds.

I do have to admit that I would very much think long and hard about voting for this initiative. Kelo really upset me a lot.

TidalPoet said...

Protests are about publicity these days. This location will garner it. It's not much more complicted than that.

I doubt Justice Souter will come and make a speech apologizing for his position and reverse it in the face of public opposition. But it may galvanize enough folks to call their Senators and Congressman in the hopes of passing legislation to limit the damage that the ruling caused.

Honey Badger said...

Mob behavior at its worst and harassment, pure and simple. What's up with defacing his mailbox? Stalk much? Juvenile.

I wonder if they'd be so cavalier in their trespass if they knew the good Justice packed a 12-gauge. Aren't all Libertarians in favor of giving trespassers a backside full of buckshot?

I sure would be.

HaloJonesFan said...

"...it may galvanize enough folks to call their Senators and Congressman in the hopes of passing legislation to limit the damage that the ruling caused."

Which is, ultimately, what the Supreme Court wanted to accomplish with the Kelo ruling--they wanted to make it clear that Eminent Domain is the legislature's problem.

"The comparison is silly, in poor taste, and inapt."

As is the suggestion that Souter's house should be bulldozed to teach him a lesson.

Simon said...

"The townspeople are fiercely in favor of a man's home is his castle and while they may hate the position Souter took his home there is his home and they will probably not vote in favor of taking it."

Perhaps it's just me - I mean, I'm not a New Englander - I would think that the chances that they will vote TO take the property would go up in direct proportion to how much they believe that "a man's home is his castle." Thanks to a ruling supported by Justice Souter, their Castles are now at risk of being taken by any Tom, Dick or Harry who wants to do some economic redevelopment, while a year ago, it could only be taken for a public use. Granted, when you lose your house, it's small comfort that it's for public use, but to have it taken for someone else's profit is to add insult to injury.

ATMX said...

Yes, and the Justices who were in the minority on Roe v. Wade should be raped.

Well, only if the Justices who were in the majority can be retroactively aborted.

You must have seen that coming.

Too Many Jims said...

Property rights advocates pursuing this makes as much sense as Pro-life advocates pursuing murder as a means to protest Roe v. Wade.

Ends justify the means.

jbisch said...

Why? It's reductio ad absurdum. What's wrong with that?

David Garland said...
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David Garland said...

The protest is misdirected.

There is absoltely nothing that prevents a state from adopting constitutional provisions that afford greater protections of individual rights than provided by the Federal Constitution.

The protestors may as well be outside the homes of justices on the highest court in Connecticut --these jurists could have put a stop to all this under state law, without troubling the Supreme Court to decide what the Federal Constitution has to say about the issue.

Souter and the other justices are merely interpreting and applying the Federaal Constitution, and a majority have conclded that the proposed development is a "public use." That is consistent with a long line of precedent.

At this point, people who are truly interested in protecting their property against a "taking" would be working to pass an amendment to their state constitution rather than protesting outside the home of a Supreme Court justice.

It's a publicity stunt, pure and simple.

jbisch said...

You say that as if publicity isn't a great way to begin to gin up support for your cause. Not everyone is as hip to the constitutional bruhahas of the moment that Althouse readers are. If a SCOTUS justice loses his house using the mechinism that he OKd in a ruling, that's worthy of national news. Maybe it'll start a conversation and generate momentum.

David Garland said...

Obviously it generated publicity. There can be be no debate on that, and everyone enjoys a First Amendment right to freedom of speech. No problems there.

My point is, let's see this for what it really is: An attempt to depict Justice Souter and others in the Kelo majority as extreme, liberal jurists who place little value on property rights. All based on how they interpret that provision of the Fifth Amendment that reads: "private property [shall not] be taken for public use, without just compensation."

The problems with that perspectice are several, and one which I find glaring is that Connecticut law provides the same protection:
"[T]he property of no person shall be taken for public use, without just compensation therefor."

Similar provisions can be found in numerous other state constitutions, and, overwhelmingly state courts have not interpreted the "public use" limitation to forbid takings for development projects.

Kelo is not a liberal perversion of the Fifth Amendment, although that is the picture that protestors are trying to paint. It is very much in the mainstream of takings jurisprudence.

YoPopa said...

david garland
said "Kelo is not a liberal perversion of the Fifth Amendment, although that is the picture that protestors are trying to paint. It is very much in the mainstream of takings jurisprudence."
I have to agree partially with that, and I would add that it was not a radical, ultra-liberal piece of straw that broke the camel's back. But the camel's back was broken.
The majority justices in Kelo took a not very big step. It was the easy step for them because it was so much like all the other steps that had come before down the road to hell.

"The townspeople are fiercely in favor of a man's home is his castle and while they may hate the position Souter took his home there is his home and they will probably not vote in favor of taking it."

Don't be too sure of that. I was one of the folks pounding the pavement in Weare on Saturday. I only talked to the residents of about 24 homes and I got 16 enthusiastic supporters to sign on. Of those who declined only one couple seemed like people who take the time to vote.

Simon said...

"There is absoltely nothing that prevents a state from adopting constitutional provisions that afford greater protections of individual rights than provided by the Federal Constitution."

I agree, in the sense that - as I discussed here, this is precisely what the Ninth Amendment means.

However, while a State may afford its citizens greater protection than the U.S. Constitution allows, they cannot afford them less protection (or at least, while they can, doing so can and should lead to a Federal challenge). Of course the legislatures of the several states may nullify Kelo by tightening their own emminent domain laws - but they may choose not to, and Kelo's effect is to grant the States discretion where the Fifth and Fourteenth Amendments to the Federal Constitution deprive them of it.

More so than perhaps any case since Maryland v. Craig, Kelo's substitution of "public purpose" for "public use" reminds one of Justice Black's dire warning, dissenting from Griswold, that "[o]ne of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning." It might, perhaps, be arguable that economic development is a public purpose (I think that to be somewhat tenuous, and the Kelo majority makes no substantial effort to make that case), but it is certainly not a public use.

I suppose it could be argued that, as a matter of precedent, Kelo - like Roper - was correctly decided. But to permit this commits the Anglophile's mistake identified by Steven Calabresi in The Tradition of the Written Constitution: Text, Precedent, and Burke, viz., "our Constitutional tradition, unlike Britain’s, is one where we venerate the [text of the Constitution] above all else [including precedent, ] caselaw or practice . . . [those] who are not textualists are actually secret anglophiles who mistake the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around."

Stare decisis serves the valuable purpose of maintaining stability in the law, but it developed in the British system, where there is no written touchstone comparable to our Constitution, and when precedent starts to lead us into decisions which may square with precedent, but can no longer be squared with the Constitution's text, as it was originally understood, we must periodically re-evaluate, look to the text once again, to steady our bearings, and, when neccessary, correct course. Those who defend Kelo are left to uneasily defend a decision which essentially deprives the clause it interprets of coherent content.

As I pointed out at the time (and my view has not essentially changed since):

"If the takings clause can be read to mean that as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), why couldn't that same line of reasoning allow other provisions to be similarly read? For example, take the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The eventual-but-abstract relationship test you suggest would turn the commerce clause into a blank cheque thorugh which Congress could excercise the plenary powers which it was so deliberately and clearly denied by the Constitution. Fortunately the Supreme Court would invalidate any such attempt as ultra vires. Oh - wait…"

Wade_Garrett said...

Bearbee -- How is it democracy in action, exactly? I disagreed with the Kelo majority, but that doesn't make this protest democracy in action. Courts aren't democratic institutions.

Wade_Garrett said...

Calling this democracy in action is foolish. Not to repeat myself, but part of living in a democracy is that there is a process for resolving disputes, and the homeowners in New London lost. Sorry guys.

I've spent a lot of time in New London, where the Kelo case originated. On principle, I disagree with the ruling in Kelo, but I also see how the development with really help that area. It is right next to a naval submarine base, the Coast Guard Academy, and the Foxwoods and Mohegan Sun casinos. There has been an influx of higher-income people into the area in recent years, and this development reflects those demographic changes. I can't say the legislature acted irrationally when it passed the ordinance.

Still, do we really want to do this? Would it be a good idea to burn flags in the driveway of every Justice who upholds the first Amendment? Tresspass on the property of judges who seek to limit the second Amendment, because they can't shoot us in retaliation?

TidalPoet said...

"Democracy in action" doesn't mean taking a decision and saying, "Ok folks, pack up, we're done. Next."

Protesting IS a valid right of expression (and that hurt to type) and is a large part of our democracy. While you may not like the venue or the reasoning they've taken, to dismiss it as something other than democracy is a bit elitist. (not saying you are, but that dismissing something like that seems so)

If everyone quit and went home after losing, well, this country would be quite a different, less free place.

Wade_Garrett said...

Tidalpoet - I agree with you about protests in general, but retaliating against a public servant in his private like like this makes me uncomfortable.

SarahWeddington said...


It's ironic you cite Black from Griswold when he signed on to the 1954 Berman v Parker opinion that Kelo was largely based on.

Black would have been in the majority in Kelo. As would the 30+ other Justices over the past 100 yrs that all unanimously decided that public use and public purpose are largely synonomous and that it is the job of the legislature to reach that decision, not the job of the court.

Look at Old Dominion, berman v Parker, Midkiff, Munn v Illinois, and one other case from 1897 that escapes me.

The Kelo decision was the correct one, Thomas' law office history notwithstanding. Thomas was the activist in that case.

dick said...


The problem is that the homeowners should not have lost just because a bunch of yuppies moved into the area. It gives the impression, probably rightfully, that the yuppies are justified in saying I have mine and I don't want to live next to lower middle class people. Give me my Starbucks and my marinas and screw them. If that is the impression that new London wants to present, they succeeded. I hope they are now stuck with the property that nobody wants and nobody pays taxes on. They deserve it.

dick said...


Just as a PS, it is justice because it shows that even though these people are justices of the Supreme Court, they are still subject to the same laws that the rest of us are. If the town of Weare chooses to have a hotel built on the site of Souter's home, then based on his judgment in Kelo the town is entitled to because it would be an economic development. Why should the citizens with up to 100 years or more of their family living in a home that has been kept up lose that home because some yuppies want upscale marinas there instead of the proles.

Too Many Jims said...

jbisch said:

Why? It's reductio ad absurdum. What's wrong with that?"

Reductio ad absurdum is a rhetorical device used in arguments. These people are doing more than making an argument, they are trying to take his property. If they really believe that Kelo was wrong and that people have a natural/constitutional right to their property (that is damaged by Kelo), I do not believe they advance their cause by abrogating anyone's rights.

TidalPoet said...

Abrogate someone's rights by using the laws as they are written. They aren't abrogating anything, they are having a town take someone's property using due process.

Obviously it's a nasty and spiteful thing to do, but according to the Supreme Court, not illegal.

Simon said...

I cite Justice Black when he is right, and decline to do so when he is wrong; stare decisis aside, an opinion's merits are its pursuasive merits and none other; Justice Black wrote many fine opinions, but one notes that while he joined Berman, he did not write separately, so I think your assertion is - while far from unreasonable - unsupportable. Perhaps the Justice Black of 1965 had attained a wisdom that the Justice Black of a decade earlier had lacked, but in any instance, I think what he said, not what opinions he might have joined, to be more indicative of his disposition.

I think your 1897 case is Chicago, Burlington, and Quincy Railroad v. City of Chicago, 166 U.S. 226 (1897), and the discussion within it hinges on whether or not due process requirements were satisfied; that is, "whether 'due process of law' requires compensation to be made or secured to the owner of private property taken for public use," id. at 233 (cf. id. at 241) (holding that "[i]n our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument") (cf. id. at 248) ("[t]he principal point of dispute between the parties [in this case] [i]s whether the railroad company, by reason of the opening of the street, [i]s entitled to recover a sum equal to the difference between the value of the land in question, as land, without any restriction on its right to use it for any lawful purpose, and the value of the land when burdened with the right of the public to use it for the purposes of a street crossing"). This has everything to do with the attendant compensation due on the excercise of emminent domain, and nothing to do with the underlying question before us today, which is whether emminent domain must be excercised for public use: the City of Chicago Court does not address that issue; that the taking in question (a street crossing, undeniably - and undenied by the litigants - a public use) is a public use is assumed as given.

The first problem with your citation of Berman v. Parker, 348 U.S. 26 (1954), is that the case in question was dealing with the District of Columbia, a very different proposition than any which would apply to the States, if one does not accept (and I do not) the countertextual Bolling v. Sharpe (347 U.S. 497) argument that the Fourteenth Amendment applies the same strictures to the states as to the Federal Government. In my view, the Fourteenth Amendment incorporates the protections of the Bill of Rights against the States by way of the piveleges or immunities clause - this leads to a perhaps different characterization of how they are applicable than our friends who support incorporation via the due process clause (or, in the case of Justice Blackmun, you know, whatever peg is handy to hang that hat on). In any instance, then, at the outset I should note that whatever Berman might say about the Federal power of emminent domain, I do not necessarily accept follows to state power of emminent domain.

More importantly, even if we assume arguendo the relevance of Berman, that case argues, at core:
"Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia or the States legislating concerning local affairs. This principle admits of no exception merely because the power of eminent domain is involved."

(Berman, supra, at 31-2). This is less a decision - and more an abdication on the part of the Court, a fortiori because - as Justice Douglas should well know - while "[t]he power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs . . . [it has] the police power," the District of Columbia is not a state, and the police power of the state is usually regulated by the democratic process. If the citizens of New London do not like the State's use of emminent domain, they, at least, retain the option of removing their legislators. The residents of the District of Columbia do not. Even if Kelo did follow logically from Berman, and even if I did believe that stare decisis afforded protection to a wrongly-decided case of this nature (in my view, at best, stare decisis can only protect a decision which is widely-accepted and which has fostered legitimate reliance on the part of those it protects), I do not accept Berman, and so take it as no authority for Kelo.

Lastly, I think your contention that Justice Thomas' opinion is "activist" borders on the absurd, even if one does not accept his conclusions. What mangled definition of "judicial activism" are you using in order to reach this handy, if empty, rhetorical flourish?

In my view, Kelo was wrongly decided, and I hope that Justice Stevens will be replaced with Justice Young, of Michigan, whose nomination would be a clear rejection of Kelo and its author.

Too Many Jims said...


I wouldn't be surprised if what these people plan to do is "legal" (I also wouldn't be surprised if it was "illegal" under either Kelo or state law). That said, assuming it is legal, what they are doing is not consistent if they believe that landowners have inherent rights to keep their property.

SarahWeddington said...

When one Justice in a solo opinion takes it upon himself to call for the overruling of 100+ yrs worth of opinions that commanded unanimity of at least 3 Courts with 27 different Justices of every conceivable philosophical background, on the mere pretext that in his view the "original understanding" of the takings clause dictates the outcome, that's activism in my book.

Especially when the law office history he spouts is rather thin.

But for 1 Justice to say he knows better than 32 other Justices that have sat on the Court, that's activist. O'Connor's dissent, while wrong in my view wasn't activist. She didn't take it upon herself to rewrite 100+ yrs of precedent and claim that 32 other Justices of every imaginable background had no clue when it came to the Constitution.

James Madison spoke of the importance of not letting one's solitary opinions lead one to go against established constructions. Thomas obviously listens to the framers when we wants to and ignores them when he wants to. Even Scalia has at least some respect for Stare Decisis-as does Thomas in certain cases he's evinced displeasure at, which made his Kelo opinion all the more activist(an opinion that I feel confident in saying no other Justice of the past 100 yrs would have joined).

Cousin Don said...

Wouldn't it be ironic if the townsfolk of Weare, NH vote for this, and Souter fights it to the US Supreme Court.

A case he'd have to recuse himself from resulting in a 5-3 overturning of Kelo thanks to Alito replacing O'Connor.

Now that would be divine justice, IMHO.

Simon said...

When Madison spoke, I doubt he had in mind constructions which essentially abrogate the amendment process that Madison himself put in the Constitution. It will come as no surprise that I don't agree with your reading of the relevant caselaw, nor your definition of judicial activism, the latter a foriori since it effectively declares war on the oath to support and defend the Constitution of the United States. But then, I wouldn't expect someone who posts the name of the attorney in the case which best exemplifies actual judicial activism (outright usurpation, in fact - Nixon was run out of office for a less imminently treasonous act) to understand this, let alone the attendant irony of a supporter of Roe having the sheer nerve to preach judicial restraint to Justice Thomas.