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Let's Have a Bit of Perspective Here:

Dave Hoffman (PrawfsBlawg) suggests that trying to get Justice Souter's home condemned is "the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare."

Uh, no. It's actually the same as if someone asked the City Council wherever Scalia lives to impose a special surtax on Scalia's property. Asking the government for something — even something that may ultimately prove unconstitutional — is rather different from a mugging, no? (Perhaps radical libertarians might conclude that the government's actually taking the property would be identical to a mugging, but the mere request, especially one that is nearly certain to be rejected, surely wouldn't qualify.)

Nor is it sound, I think, to say that "Obviously, the takings claim itself is frivolous, given Kelo's intent language" (I assume this means the claim asking that the property be taken), though the error here I think is much less clear than the one I just discussed. Under Kelo, it does seem that the government couldn't seize Souter's property just because it doesn't like his policies. But Kelo speaks to the intentions of the government, not of those who are doing the development.

Developers' intentions are often not public-regarding; even if they aren't political retaliation, they're often simply private gain, which is perfectly fine. If the developer here persuaded the city that the taking would indeed be economically beneficial ("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 34 Cilley Hill Road than allowing Mr. Souter to own the land"), and the city was genuinely motivated by this public benefit, the developer's motives would, I think, be irrelevant. [UPDATE: There might also be non-Takings-Clause related constitutional objections, for instance based on the theory that certain kinds of state retaliation against federal officeholders for exercising their federal responsibilities violate federalism principles, but these would be far from "obvious" winners, partly because as best I can tell they would rest on largely novel theories.]

Of course, the request to the City Council does seem frivolous in the sense that it's extremely unlikely to be granted. (Among many other factors, surely it seems extremely unlikely that a small town would treat its most successful citizen this way; and few small towns would want the bad publicity that would come of what most people would see as a petty form of retaliation.) Yet this just further shows that despite the "this is not a prank" language in the press release, the petition is surely meant as a political statement, not as the first step in what is intended to be an actual real estate development.

So the petition to the city council, I think, is no crime (as Prof. Hoffman at first suggests it might be, though he concludes, seemingly with some regret, that it's not). If it's simply a request for legislative or executive action, it's just the exercise of Freestar Media's free speech and petition clause rights. If it triggers an adjudicative or quasi-adjudicative process, and it's frivolous in the legal sense (which as I argue above is far from clear) then it might lead to sanctions or civil litigation, simply as a form of frivolous litigation. But my tentative sense from the press release is that it's simply a request to a government body to do something that it has absolutely no interest in doing.

I agree with Randy that we shouldn't seriously want government agencies to retaliate against government officials by seizing their property. But I don't think there's any serious risk of this, and I suspect that many people who liked the press release did so because it makes a humorous political point of the "imagine him hoist by his own petard" variety, not because they actually endorse detonating any petards under Souter or his property. And analogies to muggings strike me as quite misplaced.

WHB:
Your argument reminds me of the Noerr-Pennington doctrine in antitrust law. The basic thrust of it is that you can ask the government to do anticompetitive things to your rivals that the antitrust laws would prevent you from doing on your own.

Basically, there's a difference between self-help and asking the government to do something for you. Part of the basis for N-P is the First Amendment right to petition the government.

Accordingly, there should be nothing illegal about the request to the Weare government, regardless of whether or not it's successful.
6.29.2005 9:19pm
lucia (mail) (www):
I agree with most of what you said, but I wanted to comment on this:
we shouldn't seriously want government agencies to retaliate against government officials by seizing their property. But I don't think there's any serious risk of this,

I would agree if you added "in or current political circumstances".

Government officials seizing private property to retaliate against private individuals, or some cases, entire religious orders, has been known to occur elsewhere and in other eras. I find the possibility that our constitution permits this to occur disturbing. I had always thought one of the purposes of the takings clause was to prevent this sort of thing.
6.29.2005 9:34pm
Brett Bellmore (mail):
Oh, come on, government retaliation against private individuals through facially impersonal actions, is scarcely unknown in this country, in this era. Does anybody really think Peter McWilliams would have been prosecuted, and forced to die in his own vomit, if he hadn't written a popular book attacking the war on drugs? How about all those audits during the Clinton administration?

Now, maybe we don't want it to be a routine matter, but I think there's a lot to be said for a bit of poetic justice once in a while.
6.29.2005 10:12pm
Axel Kassel (mail):
RE ".. few small towns would want the bad publicity that would come of what most people would see as a petty form of retaliation."

Not petty retaliation at all, but a noble and poetic gesture would it be, one that would make the selectmen of Weare, N.H., folk heros to millions of outraged American citizens.

But timing is all. The cause of action in the hypothetical case of Suter v. Town of Weare must be deferred until such time as a strict-constructionist majority sits again on the Supreme Court, so that any relief for Suter would be packaged in a decision overturning the grotesque decision in which he played an infamous part.
6.29.2005 10:28pm
LiquidLatex (mail):
If you don't believe this is a serious (negative) precedent, I've got some recently reclaimed land in Zimbabwe and about 200,000 displaced people that you need to talk to.

That's only a recent especially egregious event. When we take a look at history of even the last fifty years we can come up with several dozen to hundreds of examples of this specific type of Supreme Court ruling which is heavily influenced/corrupted by the presidency usually.


I fully support evicting Souter with a reasonable amount of compensation for his property and home and replacing it with something that is either a public work or even under this new ruling a private establishment that will be more beneficial to the local society.
6.29.2005 11:45pm
phillymikec73e (mail) (www):
I do think its obviously wrong to retaliate against a judge for doing his duty as he sees fit. But, that's not how I see this case. Abraham Lincoln said "The best way to get a bad law repealed is to enforce it strictly." I see this as an example of enforcing the law strictly to make it obvious how terrible it is. After all, it really could be used to retaliat against judges or any other official. Souter just happens to be a particularly good target.
6.29.2005 11:55pm
Steve:
My instinctive reaction is that it's just a joke and people should lighten up; but the posts here and elsewhere lead me to reconsider.
6.30.2005 12:17am
xxx:
"Among many other factors, surely it seems extremely unlikely that a small town would treat its most successful citizen this way; and few small towns would want the bad publicity that would come of what most people would see as a petty form of retaliation."

Apparently, you've never been to New Hampshire. It wouldn't surprise me if they can get a majority of the selectboard to go with this. If it can happen anywhere, it's there.
6.30.2005 12:29am
Been There, Done That:
Should Justice Souter be exempt from Kelo because he participated in it? Because he is a higher class of citizen with special rights? Why? If Souter upheld the constitutionality of the speed limit, could he drive 100 mph with impunity?

What is proposed here could happen to anyone. We only hear that it is a "prank" or "retaliation" because of Souter's status as a justice. If it happened to some nobody, some random unremarkable woman in, say, New London, Connecticut, it would just be the law, doing its thing to an ordinary person in the name of the greater good.

By all means, let's detonate this petard. Let's enforce the law to the hilt against our judicial masters. Under the rule of Kelo, a higher tax receipt is good enough. Indeed, the only distinction from Kelo is that with the Lost Liberty Hotel, the utility to the developer is obvious.
6.30.2005 12:40am
Robert Schwartz (mail):
Liberals think their pet judges are tin gods revealing the truth from on high. The rest of us are no longer fooled. It has been apparent for years that the residents of that asylum for the demented are merely dressing up their idiosyncratic preferences in legal bafflegab and imposing them on an innocent nation.

They no longer deserve respect, deference, or any kind of a free pass from the political process that they want to muck around in without getting dirty.

I have repeatedly said that Voltaire's suggestion should be applied to them, but I am a nice guy, so I will suggest we send the ones over 70 to the old folks home and appoint a new bunch. WRR.

To Hoffman and to Souter, I say, welcome to the big leagues. Its going to be really hard if you can't take a joke.
6.30.2005 12:48am
Cheburashka (mail):
Just because the "public use" language in the 5th Amendment doesn't act as a limitation, does not mean that the Equal Protection clause of the 14th Amendment does not apply, including the doctrine forbidding the government from targeting individuals for illegitimate reasons.

I'm still shocked - shocked - to find the bloggers here disagreeding with Kelo.

All I can say is, if you've ever watched a major development try to get underway up close, you'd have a different opinion. For some magical reason, the moment a development is announced, everyone who lives in a terrible area suddenly decides that they'd never, ever leave at any price.
6.30.2005 12:51am
Cheburashka (mail):
Oops, typo.
6.30.2005 12:52am
Eugene Volokh (www):
Cheburashka only talks that way because he had a rough childhood -- it would sometimes even happen that no-one would come by for his birthday. Either that, or it must be that scary crocodile he hangs out with.

Rated UO/NEF for utter obscurity, no explanation forthcoming.
6.30.2005 1:12am
Brett Bellmore (mail):
Fine, then don't build the major development. The world won't spin off it's axis if some deals don't get closed, shocking as that concept may seem.

In a world where the power of eminent domain isn't available to developers, developers would simply have to adapt. For instance, finding multiple potential sites to build, and start buying up conditional options to buy, such that you don't buy any of the properties in a block unless they all become available.

Having the government point a gun at holdouts may be convenient, but that doesn't make it necessary, or right.
6.30.2005 1:18am
David M. Nieporent (www):
I do think its obviously wrong to retaliate against a judge for doing his duty as he sees fit.

Surely, that can't be right. Is it "obviously wrong" to harshly criticize a judge for issuing a horrible decision? Is it "obviously wrong" to decide never to vote for him (if he's an elected judge) or never to support his nomination to a higher court? To decide never to invite him to any more social functions? To decide not to ask him to give a speech? All those strike me as perfectly legitimate acts of retaliation.

It's obviously wrong to retaliate in certain ways against a judge. For instance, mugging him. Retaliating against him by breaking the law seems "obviously wrong."

Of course, there may be some gray areas -- firing the judge's relative, who works for you, may be legal (or maybe not?), but seems wrong. But applying a judge's own decision to him? Not only does that seem right, but in many ways justified. If it's so horrible to have one's home condemned, well, then, perhaps he ought to have considered that before he decided it was no big deal for Ms. Kelo's home to be condemned. Think of it as part of the evolving needs of society.
6.30.2005 1:49am
DJK:
There are scores of reasons a particular piece of property is selected for a development project. Most of those factors are of the rational economic variety. Sometimes, sentimental concerns come into play (that's the neighborhood where I grew up and I want to make it better now that I'm a successful developer) and sometimes petty jealousies or grudges get settled. The notion that somehow the more base motivations magically disappear in projects that involve public entities is laughable.

And let's not pretend that having open public hearings the findings of which a court can review is protection against these types of unjust takings. Scores of professoinals carefully craft the public message to be presented to a City Council, Planning Commission and neighbors. But under the Supreme Court's analysis, as long as there is some facially plausible case to be made for a public benefit (not use), we won't inquire into whether the particulars of a project are impermissibly motivated.

Howard Hughes once famously bought a hotel and casino because it wouldn't rent him the the rooms he wanted when he wanted them. Now he wouldn't have to pay for the business, he could just go to the city council, convince it he would do something better with the property, and pay the city $1 a year for a 99 year lease.
6.30.2005 3:06am
PLM (mail):
According to Justice Thomas, the main victims of "Kelo" condemnations are the poor without friends in high places who happen to own a piece land which has for some reason become desireable to some richer and better connected person. Justice Souter obviously doesn't fit into this "poor and friendless" category so he should have little to fear even if the "development plans" isn't a joke. But it would be a poetic end to the case.
6.30.2005 3:06am
Been There, Done That:
When Cheburashka and Gena built the Friends House, where did they get the land? Perhaps Souter and his ilk were running the place....

Subjective intent has long been drummed out of the Fourth Amendment. If the seizure is objectively reasonable, the Court isn't going to look into the officer's heart. Why should it be any different under the Takings Clause?

The cold, hard facts are that the Lost Liberties Hotel will bring the town more property tax revenue, not to mention tourist dollars, than Souter's home.

Would the "they hate me and they're out to get me" defense work for a lower caste american targeted in this manner? Or would they just bring out the butterfly nets?

And it's not OK to steal someone's home because you dislike him, but if it's just business, hey, it's just business, and it IS OK?

As for those poor developers, imagine that! Property owners trying to exact what the market will bear! Unconscionable! Must be some inequality of bargaining strength, those disadvantaged Toll Brothers and Trumps need the government's thumb on the scales of "justice"....
6.30.2005 5:04am
Public_Defender:
I think everyone needs to lighten up when it comes to the Souter fax. My guess is that Justice Souter is a big enough person to take the joke. If he isn't, he doesn't belong in such a high position.

People who call the fax a crime lack both a sense of humor and a respect for thoughtful dissent.

Like Steve above, I think that many of the statements in support of the fax go way, way too far. The supporters lack a sense of proportion, as well as the ability to respectfully disagree. They also don't have the wit of the person who sent the fax.
6.30.2005 6:59am
bld (mail):
Eugene: Either that, or it must be that scary crocodile he hangs out with.

Wasn't he an environmentalist? They love takings.
6.30.2005 7:29am
Public_Defender:
This debate does show the gaping logical flaws in many (not all) of the arguments against Kelo. This one from David M. Nieporent is particularly wrongheaded:

If it's so horrible to have one's home condemned, well, then, perhaps he ought to have considered that before he decided it was no big deal for Ms. Kelo's home to be condemned.

The Supreme Court wasn't ruling on whether it was "horrible" to have one's home condemned. The Court was deciding whether local governments have the constitutional power to take (and pay for) a home and to turn it over to a developer.

Something can be both horrible and constitutional. The bile directed at the Kelo five is grossly out of place.

The more I read of it, the more I think Justice Thomas' dissent was a sign of his poor judgment. Just because he loses doesn't mean that "Something has gone seriously awry with this Court's interpretation of the Constitution." Kelo may or may not be wrong, but most of the criticism of it has been hysterical.

The toungue-in-cheek flair of the fax starkly contrasts with most of the rest of the criticism from the Right. This case demonstrates that humorlessness is a disease that affects some on the Right, as well as the Left.
6.30.2005 8:06am
Been There, Done That:
Public Defender,

You write:

The Court was deciding whether local governments have the constitutional power to take (and pay for) a home and to turn it over to a developer.

Since you agree the Court answered this question positively, then why is it mere humor for "Justice" Souter's local government to take (and pay for) his home and turn it over to a developer?

All the arguments against taking Souter's home boil down to some version of, "he's above the law because he voted for it" or "you can't do something perfectly legal to someone if you don't like him." I'm unaware of any precedent supporting the first proposition but doubt it would fly. The latter proposition has been rejected umpteen-bazillion times, with only the usual exception for invidious discrimination based on some sort of protected class that appears inapplicable in the Lost Liberty case.

I would welcome an opportunity to invest in this hotel project.
6.30.2005 9:56am
Hans Bader (mail):
It's a close case. It's possible that seizing Souter's property might be an equal protection violation. If the city took his property out of a desire to harm him for his vote to uphold seizures of private property in the New London case, that would probably violate the equal protection clause under the Supreme Court's Olech and Moreno decisions (Olech held an equal protection claim can be based on an action against a single person, and Moreno said the bare desire to harm someone is not enough). As Justice Kennedy said in his New London concurrence, a court "under the equal protection clause must strike down a government classification that is clearly intended to injure a particular class of parties." But here, the city is not motivated by a desire to retaliate against Souter -- the proposer of the "Lost Liberty Hotel" project is. Still, the city would be deferring to that retaliatory motive, and in zoning cases, the Fourth and Tenth Circuits have held that a city's deferring to a racially discriminatory motive of its citizens can be a violation of equal protection even if the city itself lacks any wrongful motive. Under analogous reasoning, taking Souter's home out of deference to his critics might be an equal protection violation. While the argument against taking Souter's home is not overly strong, it might work, since judges tend to circle the wagons when members of the public go after them.
6.30.2005 10:16am
lucia (mail) (www):
Something can be both horrible and constitutional. The bile directed at the Kelo five is grossly out of place.

It's certainly true something can be horrible yet constitutional. However, when it is, we ought to amend the constitution.

Some bile is directed at the Kelo five themselves and may be out of place. However, a lot of the bile exists because many believe this type of taking should not be permitted. I don't think the second type of bile is out of place.

As it happens, we don't know Mr. Clements motive for requesting permission to build a hotel on Souter's property arises out of bile against the justices. He may simply wish to publicize the impact of the ruling. He is certainly managing to do the latter. Why should we assume expressing bile against Souter is his intention and not a simple side effect?
6.30.2005 10:38am
jallgor (mail):
Public Defender,
I think you underestimate the real-world impact of Kelo. The bile being directed at Kelo is really being directed at the abuse of eminent domain that has been a growing issue in this country. Unfortunately, many people are not aware of the growing trend that exists whereby municipalities are handing over one person's home to another private citizen merely because the wealthier citizen claims he can generate mroe tax revenue with the land. Now that Kelo has brought this practice to the forefront, people are outraged. I recently sold my home (on prime real estate) to a group that wants to build a stadium in NY. My neighbors and I managed to negotiate a selling price and avoid condemnation but our only bargaining chip was the threat of protracted litigation and the possibility of reversing the growing trend of broadly defining public use to mean just about anything. I have to wonder how credible our threat of litigation would have been after Kelo.

You have to look at this on a smaller scale to really see the injustice. Just imagine one day I look over at my neighbor's property and think that if I combined our land I could build a big residential tower and make tons of money. Rather than approach my neighbor with an offer, I go to the city council and ask them to condem the property for me. I promise lots of increased tax revenues and maybe to sweeten the deal I promise to put aside a certain amount of the apartments for low and middle income families. They love the idea condemn the property (perhaps even give it to me for free!) and I go on to make millions. Is this constitutional? Based on Kelo, I think the court would say yes. Is this really how we want things to be? Where does this sort of thing stop? Thomas' dissent foresees this as the logical conclusion of the Court's ruling and I agree with him that something has gone awry if this is what the Court believes the Constitution allows.

Finally, the government will pay for condemned property but you get what they tell you its worth. If you want to dispute its value good luck litigating it for the next 10 years (I know people who are still trying to get what they beleive to be fair value on their condemned businesses 13 years later).
6.30.2005 10:38am
triticale (mail) (www):
There is a presumption, in the criticism of the proposed taking, that the intent is retaliation. We cannot know Clement's intent unless he makes it clear, but my support for the proposal is motivated by education rather than retaliation. I do not believe Justice Souter comprehends the impact of his decision. I do not, by way of a parallel example, wish upon everyone who opposes medical marijuana an illness which produces nausea so severe that it is impossible to retain an oral anti-emetic long enough for it to take effect.
6.30.2005 10:47am
Mike Porter (mail):
I live in New Hampshire and drive through Weare each day going to and coming home from work. Weare is a very nice town but I doubt it could support a modest sized motel, let alone a hotel. This must be a joke! A good joke that makes an excellent point, but a joke none-the-less. Mr. Souter has been a big disappointment for us Clarence Thomas fans.
6.30.2005 10:55am
Public_Defender:
Based on the text of the fax, I think Mr. Clement's motive was to use humor to make his point that Kelo was a bad decision. He would have to be delusional to think he would succeed in taking Souter's home, and that fax is not the product of a delusional mind.

His humorous argument is a more fair--and far more effective--way to make the point than some of the other nastiness. Humor is a wonderful tool that lets you get away with arguments you couldn't make without your tougue in your cheek.

I agree that the policy implications of this decision are horrible for some people. As I've said in other posts, I hope state and federal legislatures reign in the practice of what we can now call "Kelo takings." The problem is that many on the Right are confusing horrible policy with horrible constitutional decision-making.

Kelo was a very close case. I don't mean that it was 5-4, but I mean that there are very plausible arguments on both sides. I think you can reasonably disagree with the majority, but it's not serious to argue that no one could reasonably side with the majority. That's why I think that Justice Thomas' rhetoric was out of place.

The fairest place to direct your bile is towards the developers and the local government officials who approve Kelo takings. Many of them are Democrats, but a lot of them are Republicans (one is in the White House). Maybe that's why the Right is attacking the Court instead.
6.30.2005 11:06am
A.S.:
As I posted at Eric Muller's blog (where he criticized Randy Barnett's post), I don't understand why "retaliation" against a judge for his decision is a bad thing, provided the "retaliation" is done in a lawful manner. Do people not agree that it is permissible for you to "retaliate" against a judge by exercising your First Amendment rights -- picketing the judge's appearances, speaking out against the judge, etc.? If that is not problematic, then why is it any different to lawfully apply to a town for use of its (now lawful) Fifth Amendment eminent domain power to increase the town's tax revenue by condemning a house and giving the property to a developer to build a hotel?

Frankly, I really don't see a moral or legal difference between the two situations.
6.30.2005 11:08am
Steve:
Some commenters seem to oppose Kelo, even though it followed decades of precedent, simply because they dislike the eminent domain power as it's been applied historically and wish it would stop. That's a worthy view; but one thing conservatives have long been explaining to liberals is that the Supreme Court does not exist to enact their policy preferences into Constitutional law. In this instance, it seems to be the liberals explaining the same concept to the conservatives.

What Kelo says, when you get right down to it, is that land use is a fundamentally local issue and really not the sort of area where the Constitution contemplated a lot of federal hair-splitting. Rather than asking the Supreme Court to derive some arbitrary test for what is a "public use," or insisting that it come up with an elaborate system of substantive due process guarantees, Kelo opponents really should be petitioning their state legislatures. They should be encouraging state courts to follow the lead of the Michigan Supreme Court in County of Wayne v. Hathcock.

My personal belief is that if the Supreme Court had tried to devise a fairness test for Kelo, then 30 years from now we would still be seeing eminent domain cases going up to the Supreme Court to be decided on a case-by-case basis, kind of like how Establishment Clause cases are handled now. I don't see why anyone would want to invite that scenario.
6.30.2005 11:09am
cathyf:
Just curious, but if 3 Weare selectmen were to grant the petition, and Souter were to file suit to stop the taking, and the decision were to make it to the Supreme Court, would all 9 justices have to recuse themselves?

(Given that yankees are famously ornery, I suspect that this petition is sore tempting to the Weare selectmen...)

cathy :-)
6.30.2005 11:25am
Justin (mail):
If its morally wrong but not as bad as something else, is it good?

Hey, it works for torture....
6.30.2005 11:35am
w. lyle stamps, esq. (mail) (www):
As I stated afore, I am more than willing to take this on as pro bono work. This isn't retaliation; it is about getting the good citizens of Weare more bang for their buck and increasing the overall economy. That a judge lives there who just happens to have made the action in question possible...is just icing on the cake.

The "cake" is still perfectly legal and beneficial to everyone. Also, note that Souter is fairly poor (vis-a-vis the other justices at least) and would probably benefit from the FMV for his land.
6.30.2005 11:47am
w. lyle stamps, esq. (mail) (www):
As I stated afore, I am more than willing to take this on as pro bono work. This isn't retaliation; it is about getting the good citizens of Weare more bang for their buck and increasing the overall economy. That a judge lives there who just happens to have made the action in question possible...is just icing on the cake.

The "cake" is still perfectly legal and beneficial to everyone. Also, note that Souter is fairly poor (vis-a-vis the other justices at least) and would probably benefit from the FMV for his land.
6.30.2005 11:47am
Kevin Murphy (mail) (www):
Perhaps the hotel idea is a problem in that it doesn't explain why Souter's home is needed, as opposed to one next door.

However, I don't see why a rich individual couldn't offer the city 5 times the cost of aquiring the house through eminent domain, in order to gain the property for, say, a Bill of Rights Museum. The fact that it is targeted at a Supreme Court Justice whose decisions are, supposedly, considered by the offer-maker as a danger to the Bill of Rights make it less fungible. No doubt a case could be make for John Paul Stevens home as well.

The city makes a profit on the deal, and the museum serves a public purpose. What could be more in line with Kelo?
6.30.2005 12:31pm
Public_Defender:
While we're at it, we should petition local governments to build streets through the living rooms of Thomas, Scalia, Rehquist and O'Connor. After all, it's horrible to lose one's home, and the four of them have the audacity to think it's constitutional to take land for road building.
6.30.2005 12:44pm
NetCynic (mail) (www):
I am not a lawyer and I don't pretend to have the legal mind of most commenters on this board, but how can this be considered retaliation?

Eminent domain use isn't punishment under the law, and no court can ever admit that it is punishment in fact. It is a fair trade of land for money, yes? So, legally speaking, Souter will not have been harmed, and can hardly claim he has been retaliated against if no harm has been done.

And I understand that Justice Kennedy's concurrence bans impermissible use of eminent domain, but from what I've read this land is right next to an existing development and would be a valuable addition thereto. As Prof. Volokh says, it would be the city's motive and not the developer's that matters.

Someone please tell me why I am wrong ;)
6.30.2005 12:46pm
guest:
Also, note that Souter is fairly poor (vis-a-vis the other justices at least) . . . .

Actually, quite the opposite is true:

Souter, who shuns public attention outside the court, reported no paid trips or noninvestment income. He was also among the richest of the justices, with holdings of about $5 million to $25 million.
6.30.2005 12:54pm
Gil (mail) (www):
While perhaps not entirely accurate, I think the "mugging" analogy is telling.

It seems that Hoffman has a greater appreciation for the nature of these takings when they happen to (or are threatened against) people he cares about, rather than to total strangers.
6.30.2005 1:04pm
David M. Nieporent (www):
Public Defender:

After I posted that statement, I reconsidered it, because I agree with your statement that "Something can be both horrible and constitutional." (In fact, I regularly criticize those activist groups (on both sides) who attack judges/potential judges for the effect of their decisions rather than the reasoning behind their decisions.) Consequences are for policy questions, not constitutional questions.

So here's my response: if the Kelo majority were actually making a constitutional argument, then my statement would have been inappropriate. But once they veer into "evolving needs of society" arguments -- direct quote from Kelo -- they're no longer doing constitutional law. They're doing policy. At which point it's quite reasonable to consider the nature of the consequences of their decisions.


Steve: My personal belief is that if the Supreme Court had tried to devise a fairness test for Kelo, then 30 years from now we would still be seeing eminent domain cases going up to the Supreme Court to be decided on a case-by-case basis, kind of like how Establishment Clause cases are handled now. I don't see why anyone would want to invite that scenario.

I don't see why, either. Perhaps that's why, if you refresh your memory of the Kelo dissents, you'll find that none of the dissenters -- not even O'Connor (!) -- favored a "fairness test." They favored a categorical rule against such private use Takings. It was the majority -- and in particular Kennedy -- who, recognizing that their decision was untenable, tried to wallpaper over the decision with some fairness arguments.

Of course opponents of Kelo should be petitioning their state legislators. But that doesn't mean we should accept Kelo. As O'Connor pointed out, the states do not exist to obviate the need for the Supreme Court to do its job. Interpreting the constitution is fundamentally a judicial matter, not a "local" matter.
6.30.2005 3:09pm
Cheburashka (mail):
bld: Eugene: Either that, or it must be that scary crocodile he hangs out with.

Wasn't he an environmentalist? They love takings.


Actually, he worked at the zoo. As a crocodile.
6.30.2005 4:13pm
Cheburashka (mail):
Brett: Fine, then don't build the major development. The world won't spin off it's axis if some deals don't get closed, shocking as that concept may seem.

In a world where the power of eminent domain isn't available to developers, developers would simply have to adapt. For instance, finding multiple potential sites to build, and start buying up conditional options to buy, such that you don't buy any of the properties in a block unless they all become available.

Having the government point a gun at holdouts may be convenient, but that doesn't make it necessary, or right.


What about the holdouts problem?

The reality, unfortunately, is that without takings significant new developments and revitilizations of already developed land would simply cease in the United States.

There's I think a significant disconnect in this debate between the theoretical (people negotiating to extract as much as possible in the sale of their homes) and the real. The real is that besides trying to get paid as much as possible, the potential sellers are persistently manipulated by local political figures, largely for the purpose of extracting, for those political figures, what are in effect if not in law bribes.

The level of infringement of property rights is vastly greater absent takings. With takings, the developer can operate through the state. Without takings, the developer must operate (in any major city) through layers and layers of community boards, zoning boards, burrough committees, etc. etc. ad nauseum. Those largely unmonitored and thoroughly corrupt bodies will insist, if not on the direct payment of a bribe (although that often happens) on the developer devoting a portion of the project to, for example, low income housing, racially balanced housing, racial balance in the ownership of businesses within the development, use of unions and concessions to the unions in the construction, and so on.

Anti-takings is a libertarian position only to the extent the speaker remains in wilfull ignorance of the maze of construction regulations and crony capitalism taking place at the local government level.
6.30.2005 4:36pm
lucia (mail) (www):
Cheburashka,

How do these takings rulings help a developer avoid dealing with layers of bureacracy? How does it help them avoid conforming to zoning regulations? How does it prevent the state from insisting the developer create low income housing? etc. etc.

I should think the state or local government's ability and desire to impose these requirements is unaffected by these takings rulings.
6.30.2005 5:34pm
Been There, Done That:
The history of urban renewal is unequivocal: failure.

Another failure is the economic system wherein the government assigns its power to favored corporate entities, essentially privatizing a tyranny. That, of course, is fascism. That's what Kelo is, not merely in an overheated, hyperbolic sense, but quite literally, it is the embodiment of the fascist economic system.
6.30.2005 8:44pm
Public_Defender:
David M. Nieporent,
When the Court cited to the "evolving needs of society," it was citing to a line of cases dating back to the 19th Century. That's a lot different than saying, "I think this is a good idea, let's read it into the constitution."
7.1.2005 8:52am