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A Taking for an Excellent Public Purpose:
This is from a press release from Freestar Media (an entity I know nothing about):
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel [on] the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on [this property] than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.
You can read the developer's (possibly tongue-in-cheek) fax to the Town of Ware here . Perhaps this taking can also be justified as part of a "comprehensive plan" to restore the meaning of the Takings Clause. (Hat tip to Matt Rustler.)

Update: I had posted this link facetiously but see that some commentors, both pro and con, are taking it more seriously. Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. I had considered deleting this post altogether--and perhaps this would still be a good idea--but, since other blogs had linked to it, decided instead to add this postscript.

TomH (mail):
This is the most entertaining thing I've read all week.

The Supreme Court is often criticized for being isolated from the subject matter about which they make decisions. Perhaps a few Justices could use a taste of their own medicine.
6.28.2005 4:47pm
SupremacyClaus (mail):
Wags on other blogs have already proposed taking abortion clinics for better public purpose.

It would be good to take bar association headquarters, law offices, and turn them into parks. Raze them, put a lawn in their place, benches for the seniors. The boon to the economy by eliminating these toxic, pestilent nuisances would be tremendous. This would be old style eminent domain, for the real public good, not for the furtherance of power and enrichment of the criminal cult enterprise that controls the 3 branches of government.

Take the jurist seminar ritzy resorts in Europe, where our Justices summer, to get instruction from their mentors for the next year's decisions. Excellent tonic to the economy.
6.28.2005 4:58pm
Adam K (mail):
In my opinion, this is about as "clever" as the NYU student who asked Scalia at a public appearance if he sodomized his wife.
6.28.2005 5:03pm
David Parsons (mail):
Puerile schoolboy prank. Raises a passing snigger, but speaks volumes of the maturity of the perpetrator.
6.28.2005 5:07pm
jallgor (mail):
It's much more poignant than the kid who asked Scalia if he sodomizes his wife. That question was menat to be rude and I personally didn't see the logic behind it as it related to Scalia's opinions.
By contrast, what this guy proposes to do to Souter's home is precisely what the Supreme Court just said is Constitutional. It's not just amusing, someone should actually do it! Why not? I'd invest in the project just for the hell of it. And I would certainly go and visit. Given the part of the country it's in though I would suggest a bed and breakfast instead of a hotel.
6.28.2005 5:22pm
Dales (mail) (www):
"Wags on other blogs have already proposed taking abortion clinics for better public purpose. "

While I appreciate the link to my blog, I will point out that in no way shape or form did I post anything of the sort, and the commenter who made the first comment about it was making a joke.

All the best,
Gerry
6.28.2005 5:28pm
Public_Defender:
Instead of focusing on Souter, perhaps conservatives should focus their anger on President Bush, who personally and financially benefited from a Kelo-like tranfer. According to a November 1, 2000 ESPN article, in April 1991:

The Rangers shepherd through the Texas legislature a bill that creates the Arlington Sports Facilities Development Authority (ASFDA), a quasi-governmental entity that is given the power of eminent domain. Shortly after the bill is signed by new governor Ann Richards, 13 acres of private property are seized for the Rangers' new ballpark, later prompting two lawsuits.

If Souter and Stevens are villans for interpreting the Constitution to permit Kelo transfers, what does that say about our president, who got cash in his pocket as a result of a Kelo transfer?
6.28.2005 5:33pm
Dales (mail) (www):
Public_Defender,

You mean the law signed by Democrat Ann Richards, that had been passed by the Democrat-controlled Texas legislature?

Just askin'
6.28.2005 5:40pm
GMUSL 1L (mail):
Public_Defender, just a few comments.

1) What party was governor Ann Richards, the executive responsible for signing the bill that was "shepherd[ed] through the Texas legislature"? Here's a hint -- she wasn't a conservative or a libertarian.

2) How much of the Rangers did Bush own? From what I remember, while he may have been a face of the team and a public spokesman for the ownership group, he was at best an extremely limited partner... unlike oh, say, David Souter, who actually made a decision rather than merely lobbying for one at most.

3) While Bush was a minority owner of the Rangers, I don't recall him being on the committee that made the decision. Thus, your attribution of this to Bush, based on your selective presentation of facts, is unfair and misleading, not even following from what you say. If you're a lawyer, remember that whole concept of "causation"? It's pretty hard to discern any causality in this other than an extremely attenuated form of guilt by association.
6.28.2005 5:47pm
Public_Defender:
Yes, that's the one. The one where the powers-that-be approved it, and the money went into the the pockets of George W. Bush. I wonder if he thought it was a bad idea when he got money from it? If he thought private eminent domain was a bad idea, that would have been a good time for him to make the argument.

Has Bush commented on Kelo? It would be interesting to see what he's said.
6.28.2005 5:47pm
GMUSL 1L (mail):
re: 3)

Bush being on ASFDA, I mean.
6.28.2005 5:48pm
rafuzo (mail):
Public_Defender,

Bush certainly isn't the first or only person to benefit from the newly-confirmed precedent. In the 50s, Robert Moses regularly struck under-the-table deals to condemn large swaths of New York City neighborhoods to build markets and developments owned by private developers, as well as using condemnation to block private developers from developing on their own property. All Kelo vs. New London did was serve to turn de facto law into de jure. In this case, there are lots of others we can point fingers at. Why are you singling out Bush, aside from the fact that he's a Republican?
6.28.2005 5:51pm
SupremacyClaus (mail):
All lawyer home addresses should be in a database. If a heating repair person gets a frantic call, Sunday night, on the coldest New Hampshire night of the year, he can look it up. If it is in the database, hang up. He can spare himself a lawsuit by not forming a heating repairman-client relationship. He knows he will be second guessed come warmer temps. Same for doctors, home builders, car dealers, anyone who provides a service or a product.

I would like to know the name of the doctor who accepted John Edward's wife as a cancer patient. Amazing person. She was treated at Georgetown, not in North Carolina. He seeks to destroy a female medical specialty in NC, then uses the same in DC. I bet he was not even blushing.

I am interested in knowing if he sued anyone after his son died, or if he got sued for negligent entrustment. He probably did not, since the other victim was human, and did not want to add to his distress. None of the lawyers here would understand that.

Database could not only be used for defensive purposes, to avoid being sued. It could be the target list for millions of Kelo actions, after paying pennies on the dollar, for good public purpose, Zimbabwe style. Mugabe their assets.

I am feeling better about Kelo.
6.28.2005 5:55pm
Justin (mail):
This is

a) immature

and

b) a dangerous precedent to set in terms of the independant judiciary (it's one thing for a judge to be "blackmailed", even after the fact, by some ignorant person unaware of the consequences, but a law professor should know better).

Once again, of course, is Randy Barnett conflating his personal policy preferences with what the law (here, the takings clause of the Constitution) requires. Let me submit that sometimes what the law is and what we want the law to be are two seperate questions.
6.28.2005 6:14pm
Baronger (mail) (www):
Justin --

An independent judiciary is one thing. A judiciary above the law is another. If this is carried out, the people doing the taking would just be following the established law. Judges can be prosecuted for breaking the law. If a supreme court justice commits murder they can be prosecuted. If a neighbor has a complaint against the justices, apple tree dropping apples in his yard he can be sued. If a developer can use the property to increase the tax revenue for the city, the property can be taken.
6.28.2005 6:18pm
w. lyle stamps, esq. (mail) (www):
I sincerely hope the idea is neither a prank nor a joke.
I've contacted Mr. Clements/Freestar media and offered him legal services and my willingness to make a small investment. If he isn't serious, I'll let everyone know...and then move forward with it myself.

This isn't about threatening an independent judiciary; this is about ensuring that _no one_, especially Supreme Court justices, is above the law. Justice Souter should be subject to the law, just like the poor folks whom he effectively just evicted from their homes. Whats good for the cat, is good for the...
6.28.2005 6:22pm
SupremacyClaus (mail):
Dales: Does your blog provider make you sign a hold harmless clause? Did you read it? Do you know what your promised? Did you review that with your attorney? Did it explain the meaning of that clause?

You call that a disclaimer? Feast on this baby, this real disclaimer for inspiration. I have to go now, to review an opinion, whether I just violated the Grokster doctrine by doing that. I did not pay royalties to AA, and you were connected to their copyrighted material, by a hyperlink, intentionally designed to share material. I need a good disclaimer.

Should Google worry about Grokster? Songs are copyrighted, but then so are all publications.

Lawyer heaven, hell for the public. The Theory of Lawyer Rent seeking predicts appellate decisions well.
6.28.2005 6:28pm
Sully (mail):
I wouldn't worry too much about Justice Souter's land. The negative impact of Kelo will be borne by poor people and unpopular political minorities, and I don't think that any of the Justices fall into either category.

"Carolene Products fn.4 is dead, long live Carolene Products fn.4!"
6.28.2005 6:32pm
Humble Law Student:
Justin:
This is
a) immature
and
b) a dangerous precedent to set in terms of the independant judiciary (it's one thing for a judge to be "blackmailed", even after the fact, by some ignorant person unaware of the consequences, but a law professor should know better).

Once again, of course, is Randy Barnett conflating his personal policy preferences with what the law (here, the takings clause of the Constitution) requires. Let me submit that sometimes what the law is and what we want the law to be are two seperate questions.




It may be childish and in bad taste. But with the ruling, it seems perfectly legal. Maybe calling people ignorant though doesn't help much - meanspirited sure, but not ignorant.

I think that many people have a problem with Kelo because it does leave the individual homeowner vulnerable to the whims of some richer developer, for example. And so these "enterprising" individuals are attempting to show the abusive side of this law. One that otherwise may not really be seen - unless it is done to a high profile individual. It is calling attention to a cause and now perfectly legal, rather like a street demonstration.
6.28.2005 6:40pm
Steve:
Someone should cite to the portion of Kelo where the Court holds that there is no Constitutional barrier to transferring property from one owner to another solely to generate additional tax revenue. Oh, what's that you say? There is no such holding in the decision? Doesn't seem to stop anyone from generating an endless series of hilarious riffs on the notion, now does it?
6.28.2005 6:51pm
Mike G:
"It may be childish and in bad taste. But with the ruling, it seems perfectly legal. Maybe calling people ignorant though doesn't help much - meanspirited sure, but not ignorant."

No, it is not "perfectly legal" under the ruling:

"The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." Kennedy, concurring.
6.28.2005 7:02pm
Public_Defender:
My point was not the Bush is a villan for benefiting from a Kelo taking. The point is that the five justices in the majority are not villans for deciding Kelo the way they did. My point was also that if you are going to vilify government officials who support Kelo takings, you should start at the top. (And yes, Ann Richards is fair game, too.)

Maybe Bush was a minority partner, but do any of you have any evidence that he protested the Kelo taking that ended up benefiting him?

For the record, I think Kelo transfers are bad policy. Legislation limiting the practice on the state and federal levels is appropriate.
6.28.2005 7:05pm
Dales (mail) (www):
"Dales: Does your blog provider make you sign a hold harmless clause? Did you read it? Do you know what your promised? Did you review that with your attorney? Did it explain the meaning of that clause?"

Did your parents ever teach you not to be obtuse?
6.28.2005 7:12pm
hf:
"it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. "

Does the holding in Kelo w.r.t. intent apply to the town council, or to the party receiving the land? In this case, B certainly wants to punish A, but the Weare council might sincerely think they can get more revenue from the hotel. If so, where is the violation of Kelo?
6.28.2005 7:20pm
David M. Nieporent (www):
Mike G: Kennedy's opinion was a concurrence, not the holding of the court.

Plus, as O'Connor pointed out, it makes no sense as a limitation. If "public benefit" is the standard, and the taking in question benefits the public, what difference should it make what the private motives of the relevant legislators are?

Steve, maybe you should review the facts of Kelo. What do you think "economic redevelopment" is?
6.28.2005 7:25pm
Brett Bellmore (mail):
Oh, I agree that judges shouldn't be retailiated against for the good faith exercise of their duties. But what's good faith got to do with Kelo?

If the evolution of constitutional interpretation to this point represents "good faith", the concept is utterly empty. I don't know what sort of ruling it would stand in the way of.

In any event, the public benefit is clear, though not entirely financial: A pointed lesson to the judiciary in what the consequences of their rulings feel like to those less privileged. It should be enough that he has tenure in office; Not suffering the same inconveniences he's willing to see visited on others is a privilege too far.
6.28.2005 8:08pm
Mike G:
David,

First, I chose the Kennedy concurrence because I thought his statement was clearer and shorter. I think that Stevens makes a similar point. (See the quotation from the Court's opinion at the bottom of this e-mail).

Second, at least as the Court is currently composed, Kennedy's vote is necessary to expand Kelo's holding. Thus, a takings that doesn't meet the the caveats in his concurrence is unlikely to muster five votes.

Regarding what difference motive makes, Kennedy explicity, and I think Stevens implicitly, is leaving open the possibility of an equal protection and/or due process challenge based on base favoritism. The outcome of an equal protection claim is not dependent on whether the government has the power to take an action in the first instance. To state the most obvious example, the Congress has the power to raise the income tax, but it is independently barred by the equal protection clause from raising the income tax exclusively against blacks. Similarly, the fact that an obvious attempt to discriminate against Justice Souter might coincidentally constitute a public benefit does not mean that it comports with the 14th Amendment.

Stevens for the Court:
"As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement;
it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska,
164 U. S. 403 (1896).5 Nor would the City be allowed
to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed
pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judgeand all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.6"
6.28.2005 8:10pm
AWT (mail):

Wouldn't this effort be more properly targeted to the legislators who voted for the specific taking in Kelo (which, admittedly, would likely not amount to much)? It seems foolish to "punish" Justice Souter for what one can only assume to be his genuine belief that the Constitution permits the legislative action in question. He didn't effect the taking, after all...
6.28.2005 8:13pm
thedaddy (mail):
Second, at least as the Court is currently composed, Kennedy's vote is necessary to expand Kelo's holding. Thus, a takings that doesn't meet the the caveats in his concurrence is unlikely to muster five votes.

Spoken like a true lawyer.
What about the cost, inconvenience and putting your life on hold getting the case to the "formerly" supreme court. Making peoples lives difficult seems to be a sport in the attorney world.

Randy I don't think that helping to destroy the Constitution is the good faith exercise of his duty
6.28.2005 9:39pm
John Jenkins (mail):
Interesting fight, if nothing else. If it were for a real development, with the actual purpose of a hotel, it would be perfectly legal under Kelo and extremely ironic.

As it is, it's a humorous way to draw attention to the consequences of the Kelo decision. Reductio ad absurdum is a time-honored technique. The question is where do you draw the line on a public taking. I think Kelo draws that line too deferentially to the government, and I fear that it is so deferential as to be no line at all.

Another problem is that the act approved here ("They had a plan!") is not that far from what Kelo purports to prohibit, the pretextual public use. I fear that the inquiry for eminent domain will become as deferential as the Fourth Amendment inquiry for stopping people and pretextual takings will become the norm. Time will tell.

Hopefully, most of the reaction will be more constructive and people will seek greater protection from their state legislatures. At least one bill limiting Kelo was already introduced in the U.S. Congress. The Federal Courts are not the end-all of everything. We have other means of redress and if people get exercised enough, they will react to us.
6.28.2005 10:09pm
Rich (mail):
I'm opposed to the Supreme Court's decision in Kelo. I think that decisions about what land should be seized using the power of eminent domain should be left in the most appropriate hands--those of unelected federal judges. It is shocking that the Supreme Court believes these decisions should be made by democratically elected legislatures in a majoritarian fashion. The constitution demands that activist judges choose the locations of our highways, our railroads, and our real estate developments. Only by turning all urban planning over to a countermajoritarian gerontocracy can we truly be free.
6.28.2005 10:19pm
Gus Van Horn (mail) (www):
This guy, based on his past record as a candidate in California's recall elections, is merely doing this as a publicity stunt to promote his "Objectivist" television show. Read the PS to my post and follow the links therein.

The sooner this is exposed as a crock, the better, so someone serious can come along.

Sincerely,

Gus Van Horn
6.28.2005 10:29pm
Alaska Jack (mail):
Rich -

I've heard your argument frequently, but I'm not sure I understand it. Are you saying that one of the fundamental purposes of the judiciary isn't to protect minorities (in this case, a few families) from a fundamental violation of their rights by elected representatives of the majority?

If this is your argument, then what rights exactly do you have that should not be able to be taken away by a vote of three elected members of a five-person city council? And what is the primary function of a separate judiciary?

I generally agree with you that judges should defer to democratic representatives whenever possible. But scenarios including a clear violation of rights are different, are they not? I guess I include among those scenarios ones in which the government simply steps in and unilaterally seizes your property (as opposed to unilaterally seizing a little bit of everybody's property). Don't you?

- Alaska Jack
6.28.2005 10:49pm
Andy Freeman (mail):
> "The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." Kennedy, concurring.

The benefits received by the "public" do not depend on the motivations of the folks providing said benefits.

> Regarding what difference motive makes, Kennedy explicity, and I think Stevens implicitly, is leaving open the possibility of an equal protection and/or due process challenge based on base favoritism.

It's not base favoritism. The developer will give money for a certain piece of land, a piece of land that is uniquely situated for said developer's project, thus the willingness to pay.

Note that eminent domain always has specific impact on a small number of people, so that can't invalidate this transfer unless you want to argue that judges are special.

Surely fair market value is adequate compensation.
6.28.2005 10:50pm
Eric (mail) (www):
Randy, I'm glad you posted your clarification, but I don't think I believe that you were just being facetious when you initially posted this item. What seems likelier to me is that you weren't really being facetious when you first posted, but then thought better of it. That would be OK--I know I've posted things on my blog that seemed sensible at first but quickly revealed themselves to me as foolish. But to my eyes, anyway, your initial post did not have the look of something posted facetiously.
6.28.2005 11:02pm
Brett Bellmore (mail):
Really, the developer's purpose could be equally served by simply demolishing the house, sans land, and selling the rubble as keepsakes. You could certainly make a profit doing it, and when Souter rebuilt his house, the local economy would benefit from the rebuilding work and purchases. And it DOES have to be Souter's home, because other homes wouldn't get nearly the same price for bricks and bits of plaster.

And the best part is, you could do it all over again after he rebuilt the house; A renewable resource!
6.28.2005 11:02pm
William Spieler (mail) (www):
Regarding the update, I don't think it's that clear that the project would be unconstitutional, because I doubt it's the developer's intent, but rather the city's intent that would be judged by the Court.

"
Thank you for visiting the "Virtual Tour of Weare". The Weare Economic Development Committee created this "Virtual Tour" as part of carrying out its basic purpose to: "develop startegies for economic development and redevelopment in an efficient, orderly manner; create parameters to retain and attract business development; maintain the rural character of the Town and continually seek to improve the quality of life of its residents."

The Committee has worked hard to identify specific actions we can take to fulfill that purpose. After reviewing the strengths, weaknesses, opportunities and threats facing the Town, the Committee selected two basic strategies;

1. Encourage the formation of new businesses
2. Promote tourism "

http://edc.town.weare.nh.us/

It's possible (although admittedly unlikely) that the city could show that it was acting only out of economic concern (it wanted to build a hotel), and simply chose the first developer to offer to do so.
6.28.2005 11:06pm
Mike G:
Alaska Jack,

I think Rich's post highlights an obvious contradiction seen in several of the criticisms of Kelo in this comment section. See, e.g., posts by SupremacyClaus and thedaddy, who are using Kelo as an example of how lawyers are overactive and dangerous despite that Kelo prevents lawyers from bringing lawsuits.

There are some pretty good reasons for criticizing this decision, but claiming that the judiciary is overreaching when it abstains from acting in deference to another branch is not one of them.
6.28.2005 11:19pm
SupremacyClaus (mail):
Dale: Leave my sainted mother out of this. She is judgment proof after consulting an elder law attorney.

Read your blog provider agreement. Not only will the Mugabe lawyers come after your home, but they will be coming after every asset down to the last button on the last shirt. This is the lawyer Zimbabwe of the checkbook, and every chattel to your name. The Kelo of the last button on the last shirt.

In Kelo, some tribunal intervenes. Yes, you can delay by hiring a lawyer. In the blogosphere, there is no controversy. You agreed to immediately pay for the legal fees and verdicts. Check and report back.
6.28.2005 11:32pm
David M. Nieporent (www):
Mike, I thought of the racial discrimination counterexample after I posted that. But

(a) horrible judges are not a protected class;
(b) you're talking about the 'wrongful' motives of the town, but this hypothetical involves the 'wrongful' motives of the developer;
(c) Stevens' caveat is empty: it provides no basis for distinguishing between the "mere pretext of a public purpose" and an actual public purpose; and
(d) it's still not clear why that should matter, if the logic of the majority is correct and anything which benefits the public fulfills the public use requirement.
6.28.2005 11:40pm
Patrick Donnelly (mail):
This going through would put Weare on the map. I wonder if it would generate enough disgruntled libertarian tourism to qualify as a public benefit?

Judges shouldn't be afraid of retaliation when they make decisions, of course, but neither should they be shielded from the completely legal consequences of them. I'll agree with others in this thread insofar as it's a publicity stunt and perhaps not even applicable wrt Kelo. It's already, by being circulated, served its purpose.
6.28.2005 11:41pm
Eric Rasmusen (mail) (www):
Messrs. Nieporent and Spieler are right: the intent of the developer is irrelevant, and can be malice and profit; only teh intent of the government matters. Even that intent only matters, I think (more debatably), if it can be shown in court that the government's *only* intent was to help the developer or hurt Souter. Mixed intents are okay. Otherwise, the Suprem Court would have had to remand Kelo to a trial court to figure out how much of the intent was to help a private party and how much was public purpose. (I expect there are very few cases where the city officials have zero intent to help the developer to whom they are giving the property.)

I say more at http://www.rasmusen.org/x/archives/714.
6.29.2005 12:09am
Rich (mail):
Alaska Jack,

As Mike G correctly surmises, my post was written with tongue planted firmly in cheek. It has been fascinating, in the days since Kelo was decided, to watch so-called conservatives and purported libertarians throw their principals to the wind in orgasms of hyperbole and inconsistency. If there is any theme to Justice O’Connor’s decades of swing-voting Supreme Court jurisprudence, it is her constant championing of the rights of states against the encroachment of a federal judiciary and Congress. Now, though, she announces that the sky is falling because a federal court has refused to step in to interfere with the MOST local of matters—urban planning.

If there is one thing the federal courts are not competent to do (and there are several), it is to plan cities. The cliché that all politics is local is never more true than when it comes to urban and suburban planning, zoning, infrastructure construction, etc. The local city and town councils that engage in this activity are the closest to the people of all elected officials in the many tiers of our democratic republic. More so than any senator, congressman, governor, mayor, or even state-legislator, these civil servants (city councilmen, aldermen, selectmen, whatever they’re called in your particular hamlet) know their constituents, know their communities, and know their needs. (Quick question: how many times have you met your senior US senator? How many times have you met your city councilman or her local equivalent?) When we set out to form this democratic republic, it was never with the idea that all matters would be decided by plebiscite; rather we have elected officials to handle the everyday matters of running the state (county, city, town, village, etc.)

Alaska Jack, your question presupposes the answer: “Are you saying that one of the fundamental purposes of the judiciary isn't to protect minorities . . . from a fundamental violation of their rights[?]” Phrased that way, how can I disagree with you? But the issue is whether a fundamental right is being violated at all. The fifth amendment takings clause is one of the very few (the only??) provisions of the bill of rights that contains a remedy right in its text. The fourth amendment exclusionary rule is a pragmatic creation of the courts. The right to a new trial following a violation of the sixth amendment right to counsel is implicit, at best. But the takings clause does not bar the taking of property. The taking of property is simply NOT a violation of a fundamental right. The right guaranteed by the clause is one of “just compensation.” Setting aside the “public use” component, which I’ll come back to in a moment, and so long as the property owner is justly compensated, there is no violation of any right, fundamental or otherwise.

Now, to “public use.” There’s a lot to say about this. I can start with the glib answer: the amendment says that private property may not be taken for “public use, without just compensation.” The logical implication of this statement is that such property can be taken for PRIVATE use WITHOUT just compensation. But I don’t believe that, and don’t expect to convince you of it either. That’s just there to razz those who claim to be textualists or “strict constructionists.”

No, the “public use” element of the takings clause has always been understood to mean that there must be some public use, some (dare I say) public purpose for the taking. Now, critics of Kelo say that the taking of rights of way for railroads, or for grist mills, is different from the present case because the recipients of the seized property are (customarily? always? necessarily?) obligated to act as common carriers, accepting all comers. I search the fifth amendment in vain for any mention of common carriers. What if the government entity that seized the land to give to the railroad imposed a common carrier requirement, but limited the duration of such requirement to, oh, let’s say, 300 years? I assume, Alaska Jack, that you’re still with me—you would still think the taking is kosher (assuming just compensation).

Lets say the duration of the common carrier obligation was only 30 years, though. Or 30 months. Or 30 minutes. I take it that, at the 30 minute mark, if not sooner, I have lost you, Jack. You no longer agree that that the taking is for “public use.” Somewhere between 300 (or 30,000) years and 30 minutes, you have made a policy decision that the “use” has lost its “public” nature. You, Alaska Jack, sitting on high, have decreed that enough is enough, and that this use is no longer public, and that fundamental rights of a minority have been trampled upon. The problem, Jack, is that you lack both the competence and the authority to make that decision. Even if you are Jack Hergeschleimer, United States District Judge for the District of Alaska, you lack that essential competence and essential authority. What gives you, Judge Hergeschleimer, the ability to make that policy decision, to draw that line somewhere in the continuum between 30,000 years and 30 minutes? Is it your particular expertise? Your knowledge of the affected community and its needs? Your anointment by the president and the blessing of the Senate? Ultimately, how is Judge Hergeschleimer any more competent to make that policy decision than the town council of Barrow, Alaska, which chose to seize someone’s property to convert it to a use of a higher order? Who are YOU, Judge Hergeschleimer, to tell the town council, the elected representatives of the people, that you know better? And by what standard can you make that decision?

The only answer is, you can’t. An activist judge (a term I hate) is, definitionally, one who “legislates from the bench.” The drawing of that line, somewhere between 30,000 years and 30 minutes, is nothing but a policy decision, a legislative decision. Unelected judges selected by Senators, nominated by the president, and confirmed by the Senate, are uniquely unqualified to make such decisions. The city council is uniquely qualified to do so. This happy coincidence establishes the fundamental correctness of the Kelo court’s holding.

-Rich Julie
6.29.2005 1:00am
Humble Law Student:
Rich,

Very elegant but irrelevant. Your main argument is that the Kelo decision placed the authority for local urban planning decisions justly in the hands of local bodies best able to deal with the situation. Just as you criticized Alaska Jack for doing so, you have effectively begged the question. Of course, many would agree that local officials are better are making such decisions than some unelected judge far away. However, that is beside the point.

If that is your justification, then why have any limits at all? Let urban planners do as they wish, forget intent, property rights, or anything like that.

Everyone would agree that local govenment officials need the tools to allow them to help create more prosperous communities and towns. However, is Kelo the right way to get to that goal? and at what cost?

The problem that many, including yours truly, have with the ruling is the enormous potential for abuse that exists with this ruling. The safegaurds that are supposed to exist are so impractical as to be nonexistent.

First, the primary safegaurd is the "intent" issue. So, let me get this straight. Judges are now supposed to be able to judge the intent of local politicians in locales far removed? If anything, judging what would constitute "public use" under the old definition is a lot easier that trying to read the minds of local politicians to determine why they really wanted to take land from person A and give it to person B. So, by your own argument against Alaska Jack the "intent" safegaurd is rather worthless.

Second, how many homeowners (especially the middle and lower classes who would be most hurt) can afford to hire an attorney and take such a case to court? Especially, when the bar that would have to be reached is to show malicious (or something similar) intent on the part of the city etc...

The last piece showing the absurdity of the ruling is actual practicality of this whole outrageous episode to take Souter's home. The intent safegaurd might actually work for Souter because the intent would be malicious on the part of the developer, but once again it isn't clear that the intent of the developer is relevant. It just may be that the intent of the local authorities is all that matters. Even if it does protect him, it only shows that the rich do have nothing to fear from this ruling - they only gain. They gain on the backs of the poor and the middle class. Nothing inherently wrong with gaining, but when it comes at the price of the natural rights of man, maybe, just maybe, something is wrong...
6.29.2005 2:04am
F.A.Hagen (mail):
Rich Julie:

The issue in Kelo was not whether a municipality or a federal court is a better planner. The issue is whether the Constitution limits the municipality's power to take property from citizen A and give it citizen B. Leaving the question to the municipality, as you argue, means that the wealthy and powerful who inevitably control the municipality will be able to take property from the less wealthy and less powerful.

Do you also believe that the municipality should decide whether the constitution limits the municipality's power to incarcerate you for critizing the municipality?
6.29.2005 2:06am
Chanc T-Mo (mail):
"The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause."

It is true that AK happens to use the word intent when describing the particular transfer. But that doesn't mean that to bar the transfers the test has to attempt to peer into the subjective intent of legislators, something courts almost never do.

What could happen is that a heightened review of the transaction (looking for more than "incidental or pretextual public benefits") will be triggered whenever the development plan in question identifies particular private entities that will use the space. So if the development plan is for a certain type of economic development, but the tenants haven't yet been chosen, then the court assumes the plan is highly likely in the public interest. If particular beneficiaries have already been chosen, then heightened scrutiny would apply.

Contrary to Sully's lamentation, this would actually further a representation-reinforcing model of judicial review. When a known private interest will benefit from the plan, there is more likely to be corruption and a break down in the representation process. Without an identified beneficiary, the risk of corruption is much less and the likelihood of genuine public motivation much greater. It's like the difference between sealed bid and no bid contracts in government contracting.

Anyway, there's probably a better way to do it, but the point is -- just because it says intent, that doesn't mean the only way to administer the test is to seek subjective intent.
6.29.2005 3:31am
Xrlq (mail) (www):
This could almost work, if someone pulled the same stunt against a different liberal Justice in the Ninth Circuit, the only one that might actually take <i>Kelo's</i> precedent and run with it far enough to rule in a city's favor. Then, you've got a circuit split, virtually guaranteeing a grant of certioriari. Then, guess which two Justices have to recuse themselves?
6.29.2005 3:45am
Public_Defender:
Even though I think a lot of the vilification of the Kelo Five goes too far, the "article" about Justice Souter doesn't bug me. It's written with a good sense of humor and contains no threats. The fax (if it really was sent) was clearly a gag with a point.

Any high government official should be able to take a joke like this.
6.29.2005 5:01am
SupremacyClaus (mail):
Our prof here did nothing wrong. Any retraction would be wrong and damaging. Threats of lawyer gotcha (June 28, 2005), are inappropriate and chilling. People who disagree may bash the prof's views, evidence, sanity, personal hygiene. The threat of legal action changes the blog into partisan politics, and makes everyone fair game. There are specific problems with the posting. I am not discussing them to avoid chilling that person's free speech.

I request that chilling, real world, legal threats be added to the list of messages to be deleted.
6.29.2005 10:10am
Dudley Crawford (mail):
Randy,
I think the irony is delicious and I hope Souter's home is taken from him. You think that judges shouldn't be liable for their opinions? What better way to demonstrate to them that they live in a real world where actions have consequences?
6.29.2005 10:40am
Rich (mail):
Humble,
A few points:
1. You accuse me of "forget[ting] property rights." But property rights aren't absolute. The property owner has no right to resist eminent domain--his only remedy is just compensation.

2. Judges divining legislative intent: First, I didn't endorse an "intent" standard in my post. I merely endorsed the HOLDING of Kelo--which is that the plaintiffs had no case (other than for just compensation). Even using an intent standard, though, I think there's nothing particularly remarkable about a court being called upon to evaluate the objectively stated intent of a local government entity. "Legislative intent" is a fiction. Even in a local planning body consisting of five members, those members may have five (or more!) different intents. What is important is the objective intent--i.e., the stated intent of the body, as set out in the resolution, ordinance, etc., authorizing the exercise of eminent domain. So long at it is not clearly a pretext, the democratically elected legislative body is entitled to have such a statement of intent taken at face value. Who is a federal judge to question it? Here's an example: Congress bars the use, posession, and manufacture of heroin in an exercise of its power to regulate interstate commerce. Does anyone believe that such regulation is essential to the ordering of the US economy? Does anyone believe that Congress (or some congressman) said "In order to effectively regulate interstate commerce, we must rid the country of heroin." No. Nobody I know would believe that. But congress stated, in enacting the controlled substances act, that it did so in an exercise of its commerce clause power. And the courts have rightly given deference to congress.

3. You say that the safeguards that are supposed to exist are so impractical as to be nonexistent. I disagree with the premise that such safeguards are supposed to exist. Unlike the federal Congress, which has enumerated powers, the states (and the local governments to which they delegate authority) have extremely broad powers, limited only by federal (statutory and constitutional) preemption and by the civil rights of the People. Setting aside just compensation, which is, again, the sole remedy for a taking, the "safeguard" is the democratic process. If a kleptocratic government goes around taking land willy-nilly to benefit cronies, it will (even without the limits stated in Kelo) be voted out. Throw the bums out! That's what we call democracy. You think you have a right to resist eminent domain? I think I have a right to drive 90 mph! I think I have a right to dump toxic chemicals into the storm sewer in front of my house. I think I have a right to sell securities without filing a registration statement with the SEC. Aren't those securities my property? Where's the safeguard? It's in the democratic process.

4. As to the ability of disenfranchised minorities to hire an attorney and take the case to court--I believe (though I' d be grateful for a correction if I'm wrong) that the method for an aggrieved landowner to contest the exercise of eminent domain is by the filing of a civil rights action under Section 1983. A prevailing plaintiff in a 1983 action is entitled to attorney's fees. Assuming his case has merit, would he not be able to find an attorney willing to take the case on contingency? And assuming his case lacks merit, why should we worry about him? I can't get excited about people with non-meritorious claims.

Rich J.
6.29.2005 10:48am
Rich (mail):
FA Hagen,

I think my post of 9:48 this morning addresses the first paragraph of your post. As to the second, there's a fundamental difference between the situation in Kelo (or that posited in my long post of last night) and the type of first amendment violation you describe: the issue of when to exercise the state's eminent domain power, as discussed above, is quintessentially a policy question which courts lack the competence to address. Your hypothetical first amendment violation is a pure question of law, which is within the court's competence.
Rich J.
6.29.2005 10:52am
Justin (mail):
Baronger, there's an obvious difference. To put it mildly, the equivalent would be knowing that Souter had murdered someone, and telling him they'd be prosecuted if (and only if) they ruled in favor of some certain jurisprudence 100% of the time. Prosecutorial discretion and all that, eh? :)
6.29.2005 11:05am
ReaderX:
It's entirely possible that because Mr. Clements would be an identified individual known in advance prior to making any findings, taking Justice Souter's homestead for the purpose of Mr. Clements' hotel would ultimately be found not to be a viable "public use" under Justice Kennedy's narrowing concurrence. Although Justice Kennedy joined the opinion of the Court, his concurrence suggests a narrower test than the Court opinion alone might. Moreover, Justice Kennedy appears to find the question of whether or not the private recipient of the property is known in advance a relevant factor to the constitutionality of the taking.

Nonetheless, it strikes me that Mr. Clements' proposal is a perfectly valid protest in a long American satirical tradition. And, whatever its ultimate economic or legal merits, it strikes me as being totally and unquestionably protected by the First Amendment right to peacably petition government.

Whether or he can get it or not, the First Amendment entitles him to petition the Weare government for it. It also entitles him to publicize his petition. It's a perfectly legitimate way of bringing public attention to his point of view.

Lawyers might be wise to speak respectfully of judges in all circumstances. But the public doesn't have to. It's a free country.
6.29.2005 11:14am
Eric Rasmusen (mail) (www):
I too found Rich Julie's comment thought-provoking. Some good questions it raises:
(a) Why are conservatives so upset that federal judges are refusing to step in to stop a local government from doing something?
(b) Isn’t it interesting that the 5th Amendment is the only one that provides a remedy for a wrong?
(c) Doesn’t the literal reading of the Takings Clause allow takings for private use, which shows that adhering to the literal meaning of legal texts is absurd?
(d) Why is a railroad or a grist mill, traditional “public uses” more of a public use than a factory?

My answers are at http://www.rasmusen.org/x/archives/715#more-715
I'd be interested, here or elsewhere, in what others think.
6.29.2005 11:37am
Grant Gould (mail):
I hardly see how taking Souter's house could be regarded as retaliation. As I read Kelo, it seems to be his _intention_ that land not being optimally used be seized and turned over to more optimal uses. When you act on someone's intentions, it is not retaliation -- if anything it would be doing Souter a favor.

By the logic calling it "retaliation," one could just as well call it "retaliation" when my family gives me a Christmas present that other people would dislike but that they know that I like. We know from his opinion that Souter wants his house used for the greatest possible increase in the tax base, so it's hardly retaliation to help him with that by putting the process in motion. I think it's really quite generous of these folks.

If there's any doubt in this matter, someone should simply ask Souter, "If we found a more publicly useful use of your house, would you mind terribly if we took it?" Entirely apart from being simple politeness, that should put the whole retaliation question to rest once and for all. I for one am sure, reading Kelo, that he would be happy to have his house seized for a public purpose.
6.29.2005 11:45am
Justin (mail):
Grant, you must be fun at parties.

It's retaliation because that's exactly why the guy who wants to seize the house (ignoring both the lack of any public use under Souter's decision and the just compensation clause) says it is. Retaliation isn't a technical definition you can find in a court decision. God, get out of the books. This is why conservatives seem to love textualism so much...because they haven't spent enough time in the REAL WORLD :).
6.29.2005 12:44pm
Rich (mail):
Justin,
Conservatives only claim to love textualism. Viz:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

(emphasis added).

ANOTHER state. The amendment says nothing about citizens suing their OWN states. Don't tell that to the Supreme Court though. They know better.

Rich J.
6.29.2005 12:53pm
Dales (mail) (www):
Supremecy Claus,

I suspected before your clarification that you were off on a completely irrelevant tangent. You have confirmed my suspicions.

All the best,
Gerry
6.29.2005 1:24pm
Justin (mail):
The 11th amendment question, though valid in a way, is too common an example to be interesting. Furthermore, there is significant *originalist* reasoning behind the construction favored by the conservatives here.

There are more fun examples, but the problem with textualism isn't that it can be convenintly ignored, but because the inquiry to the meaning of a set of symbols on a page is often a significantly more open one than to an inquiry to the meaning of the historical process which resulted in said symbols, which is why intent is a far more restrictive (ignoring the question of which is the "correct" method) method of controlling judicial discretion, no matter how paradoxical that seems. Rarely does the false textualist have to bother with directly ignoring the text to proclaim his preferred result as "commanded" by the text itself.

Furthermore, legislative text itself is much easier to manipulate than the comprehensive legislative and social history of the passage. There was a Michigan Law Review article called "The Chaotic Psuedotextualist" or something that I remember reading back in law school which illustrated the point.
6.29.2005 2:30pm
James968 (mail):
One point that I'd like to make. Before the Kelo decision, there was no "ECONOMIC DEMAND" for the Novelty location of "A House seized from a Judge who allowed its seizure".

After the ruling the possibility for such a Novelty location came into being. If this company fails someone because of their 'intent'. Another entrepreneur (who is not an activist) could come up and say 'their is an economic demand for this novelty site (their are only 4 others like it in the country)' According to news reports both Free Star Media and Weare,NH have gotten calls from people interested in supporting the effort OR STAYING AT THE HOTEL. (If company 2 is sufficiently clever, they will argue that it is neither the company or the City which are driving the location site, it is the "Consumer Demand").

Another thought, could it be argued that since Souter wrote the decision, he has already put in his feeling of the case, and hence he can not go to Court with any complaints (other than the Monetary compensation)?
6.29.2005 4:50pm
Joe Mama (mail):
Unfortunately with all this talk of "textualism" and whatnot, this lay reader is lost and ultimately disgusted. That I think is the crux of the problem with the legal system in this country--way too many of you lawyers thinking too hard about things.

It's clear to any non-lawyer that the "public use" clause to the 5th amendment--part of the bill of rights--was put there to protect individuals from exactly what's happening: local governments forcibly taking property for profit. Equating increased tax revenue with public use is obscene.

Academic and often arrogant pseudo-legal arguments such as many of the above are meaningless to the small business owners or homeowners whose livelihoods and life efforts are destroyed by petty, greedy local governments. Lest ye forget, that's what the bill of rights is all about--to protect the individual from the abusive force of government. It's that simple, and I don't need a legal degree to know that for a fact.

-J-

[[ This: "I am not discussing them to avoid chilling that person's free speech. I request that chilling, real world, legal threats be added to the list of messages to be deleted"--is an amusing exercise in contradiction, by the way. ]]
6.29.2005 5:23pm
guest:
This farce raises an unlikely but perhaps interesting hypothetical. If a cert. petition makes its way to the Supreme Court and one of the involved parties is a member of the Court, would all other members have to recuse themselves? If so, what would be the official disposition of the petition?
6.29.2005 6:11pm
Rich (mail):
As Justice Scalia made clear in refusing to recuse himself in the case involving VP Cheney's energy commission (the name of the case escapes me at the moment), there is no situation in which a justice of the Supreme Court is required to recuse him or herself. Recusal is left to the discretion of each individual justice. That said, I assume that, if all justices recuse themselves, and there are thus zero votes in favor of granting the writ of certiorari, the writ will be denied.
6.29.2005 6:22pm
Robert Schwartz (mail):
"Retaliating against a judge for the good faith exercise of his duty is not only a bad idea,"

Then I guess you aren't in favor of Voltaire's suggestion on how to handle the senile fools.
6.30.2005 12:59am
SupremacyClaus (mail):
Prof. Barnett: You claimed, "Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A."

That is biased, conclusory phraseology. It is absolutely not true. Holding judges accountable for the consequences of their decisions, is a more neutral way to put it. You are defending the privileges and immunities of criminal cult enforcers, early dementia victims, dumbasses, lawyers. These criminals are out only to enhance cult power and enrichment. Brazen, shameless, lawyer rent seeking explains the majority of appellate decisions. There is no such thing as a good faith exercise, only furtherance of criminal cult enterprise interests and lawyer welfare job creation.


John Marshall commits 9 ethical and criminal infractions in the course of Marbury, at least apply Exclusionary Rule II. If a behavior warrants judge disqualification of a single judge, even in retrospect, the ruling is tainted and void per se.

If lawyers set off a Civil War after violating established law, by refusing to free a slave who has crossed into free territory, in accordance with common law of the prior 100 years, and overturning the ruling of the highest appellate court of a slave state, let them lose their jobs.

The lawyer has dealt itself immunities and privileges. Self-dealt immunities and privileges are void per se.

Let legislatures, with all lawyers in them recused, pass legislation to grant judges immunity. Then, we have something to debate. Short of that, we have an Enron style crime, self-dealt by a criminal cult enterprise. We have nothing to discuss except surrendering for arrest and sentencing to Federal prison.

What is the justification for this assertion about judges' immunities? Pretend you are addressing a TV audience. Explain it plainly so an ordinary viewer can understand.
6.30.2005 10:38pm