First Souter, Now Breyer?:
The Associated Press reports:
  Critics of a U.S. Supreme Court's ruling that governments may seize private property for economic development want to use the process to seize a justice's vacation home and turn it into a park.
  The New Hampshire Libertarian Party is collecting signatures for a petition to ask the town to use Justice Stephen G. Breyer's 167-acre Plainfield property to create a "Constitution Park," with stone monuments to commemorate the U.S and New Hampshire constitutions, said party Vice Chairman Mike Lorrey.
  "The point is: What goes around comes around," Lorrey said. "This is a way of saying, 'You're going to be held to your own standard.'"
  I assume this means that Mr. Lorrey is willing to have his own property taken, as well? After all, what goes around comes around; surely Mr. Lorrey would want to be held to the same standard as he is holding Justice Breyer. Seems like a strange position for a libertarian, even just for a publicity stunt.
Jeremy (mail):

I assume this means that Mr. Lorrey is willing to have his own property taken, as well?

Mr. Lorrey probably feels, and rightly so, that he has no choice in the matter. (Interestingly, taking Justice Breyer's land for a park would probably be valid even under a conservative reading of the Takings Clause.)

But as has been discussed before, there's no "spite exception" in Kelo. If I'm a private developer, and I can find a use for your property that enhances the tax base, and I can get the government to go along with my plans, then the fact that I hate you and am doing the whole thing just for spite seems to be legally irrelevant.
7.31.2005 5:56pm
42USC1983 (mail):
"I assume this means that Mr. Lorrey is willing to have his own property taken, as well?"

His home - as well of those of everyone without political connections - is already at risk. The purpose behind this "stunt" is to show officials - like Breyer - the human cost behind Kelo. It's kinda funny, actually.

It's usually libertarians and conservatives who are in touch with the (sometimes) iciness of the rule of law; liberals are more warm and fuzzy. Why not twist a statute or constitutional provision to help out the little guy? But Kelo is as cold as the steel of the bulldozers that might come for your home. And we have the "liberals" of the Court (plus Kennedy) to thank.

Sadly, Breyer et al. have nothing to fear. Anyone with the political connections to make it to the Court need not worry that their homes might be destroyed. Mr. Lorrey wants to change that. He wants Breyer's home to feel the steel. Then, perhaps in the next individual rights case, Breyer will consider that he, but a man and not a god, must live with the consequences of his cases.
7.31.2005 6:11pm
Henry Schaffer (mail):
While Mr. Lorrey's position is inconsistent for a Libertarian, it would be a better analogy (although also inconsistent) to petition to take the land parcel to sell to a private developer who said he'd make a for-profit theme park.
7.31.2005 6:11pm
Excuse me, but did Mr Lorrey vote with the majority in Kelo? Oh, so I guess it isn't his standard, is it?

I don't know why you and others find this offensive. If the reading given by the majority in Kelo was more reasonable, then I might have some sympathy. But it wasn't. When justices go out of their way to avoid the clear meaning of the Constitution, they should expect to have those policies apply to them as well. Given the great interest surrounding this case, and the great revenue which can certainly be raised (more than his property tax, I am sure), I think it passes constitutional muster.
7.31.2005 6:52pm
If people don't want any homes taken, all they have to do is vote for elected officials who won't take any homes. All Kelo says is that if elected official do take homes, it isn't unconstitutional.

And by the way, for those originalists and textualists among us, what I want to know is how the words "nor shall private property be taken for public use, without just compensation" ever came to be interpreted as a "public use" requirement in the first place. Clearly they require no such thing.
7.31.2005 7:34pm
Cheburashka (mail):
I still think targeting individuals for takings violates the equal protection clause.

And I still support Kelo. But this idea of targeting the justice's homes to create "Constitution Parks" is just too funny to pass up. Where can we donate to the cause?
7.31.2005 7:43pm
Doc Rampage (mail) (www):
I think it's a very good idea to work towards making sure that the people who decide the laws should face the unpleasant consequences of their decisions. I think it would be great if Supreme Court justices not only had their property taken for development, they should also be be stopped once in a while and patted down by the police for looking suspicious. They should be required to pee in a cup once a week for drug testing, while someone watches. They should have a cars, airplanes, homes, and boats taken away from them on the grounds that the police suspect they were being used to distribute drugs. They should all have a half-way house moved in next door to where they live. They should have their property rendered useless by environmental regulations.

And although I can't say I'd endorse it, there would be some poetic justice if some of them or their family members were killed, robbed, and or raped by a criminal who was let go because the police made an obscure techical mistake in mirandizing him or questioning him.

I think we would get better court decisions if the justices thought that the decisions would ever apply to them personally.
7.31.2005 8:13pm
JGR (mail):
Orin Kerr is free to believe that it is wrong to take Breyer's home in this manner; But he is simply wrong to assert that 1) There is an inconsistency in principle in support of such of an action. 2) It is a "strange" position for a libertarian to adopt.

I recall several years ago reading an essay in Liberty magazine where the writer asserted that although she opposed laws such as marajuana prohibition, if a lawmaker voted for prohibition then was caught smoking a joint, she would support having him arrested.

Nota Bene, This is not simple vindictiveness for two reasons. First, it is an example of an ancient law of justice: Patere legem, quam ipse tulisti ("Submit to the law that you yourself proposed"). I am aware that many people would object that Breyer was not proposing the law here but enforcing it; Others would argue that by ignoring the constitution and holding such takings legal, Breyer was in effect creating (un)constitutional law. My only point here is that this is a question that is settled on the merits - Arguing the position to be inherently inconsistent presupposes that one has adopted one side of the argument.

Second, there is a more important point that the writer in Liberty was making. The rich and powerful - but especially lawmakers themselves - are generally not treated to the same standard of law as most people. It is less likely that Rush Limbaugh will serve time in jail for a drug violation than would my next door neighbor. As both O'Connor and Thomas noted in their dissents in Kelo, this ruling will not have equal impact on all segments of society - It will be the politically powerless who have their homes taken. The point that the libertarian party of New Hampshire is making - and it is a powerful one - is that if we are going to have laws like this, the priviledged elite who uphold these laws should bear the same risk as the rest of us in having them used against themselves. As for Kerr's assertion that this is a "strange" position for a libertarian, I will only say this: Anyone with any familiarity with the libertarian movement knows that they are among the most contentious people you ever met; When the libertarian party supports something almost as a whole, that is pretty strong evidence it is not strange for a libertarian position. (For the record, there are libertarians who oppose this attempt).

' And by the way, for those originalists and textualists among us, what I want to know is how the words "nor shall private property be taken for public use, without just compensation" ever came to be interpreted as a "public use" requirement in the first place. Clearly they require no such thing. '
Justice Thomas provides the history of this in his dissent; See also the writings of Richard Epstein, whose links I don't have readily available.

A final quote by Nietzsche: "The lawgiver himself eventually recieves the call: patere legem, quam ipse tulisti" (Submit to the law that you yourself proposed
7.31.2005 8:35pm
frank cross (mail):
JGR, the truely apt marijuana analogy would be a little different. It would be like the police focusing all their resources to bust the USSC Justice for marijuana after upholding its illegality.

Neither Breyer nor Kerr, I am sure, object to the taking of his land, if that is the judgment of the people in the interest of public use. This suggestion is like stalking, however.

Of course, I trust it's really just a publicity stunt.
7.31.2005 8:47pm
Gil (mail) (www):
I think Orin is wrong to suggest that consistency would require that Mr. Lorrey be willing have is own property taken. The standard that permits this is Breyer's, not Lorrey's. Lorrey is not advocating interpreting the law to allow the taking of citizens' property in this way, but is targeting a particular individual who helped set this bad standard.

However, I think actually doing it is a really bad idea.

While it is amusing to think of Breyer suffering in the way his decision allows others to suffer, I don't think it will improve the world. I don't think Breyer reached his decision because of a lack of imagination about how it would feel to be victimized by government in this way. I think he made it because he is a bad judge.

I don't think another wrong (seizing Breyer's property) will improve anything. We'll have one more victim, and he'll continue to be a bad judge.

On the other hand, the controversy surrounding the suggestion might help by pressuring states to pass laws that better protect private property against this sort of thing.
7.31.2005 9:00pm
Byomtov (mail):
Am I missing something here? Isn't a park a "public use" under any reading? Wouldn't it be a legitimate taking even if Kelo had gonethe other way?
7.31.2005 9:03pm
frank cross (mail):
While we're at it, why don't we seize some justices, refuse to charge them with crimes, and subject them to military tribunals?
7.31.2005 9:37pm
I like how "conservatives" like to complain about "judicial activists," but then when SCOTUS applies existing preceding in a straight-forward manner, with the result of upholding the will of democratically-elected representatives, everybody's all up in arms all of the sudden.
7.31.2005 9:44pm
sorry. "preceding" = "precedent"
7.31.2005 9:44pm
John Jenkins (mail):
Guest, that's because your definition of activism reates to democratic legitimacy. Another definition of activism is interpreting the plain language of the Constitution to mean something other than what it says (Equal protection doesn't mean equal; public use doesn't mean public use). My preference, as someone on the right is fidelity to the words of the Constitution. Invalidating precedents that are inconsistent with the Constitutional text is not activism by this standard.

If the Constitutional text needs to be changed, there are democratically legitimate ways to do so. Strange interpretations of straightforward language is not one. This is not to say that there are not places where the Constitution is ambiguous, but rather where it isn't ambiguous, judges ought to follow what it says. Failure to do so is "activism" of this sort.

If you're definition of activism is strictly invalidating properly enacted laws, any judge who has even the slightest fidelity to the Constitution would be an activist, and a term that applies to everyone may as well apply to no one, it becomes useless.
7.31.2005 10:06pm
The joke was funny the first time. This guy's just an unimaginative copycat.
7.31.2005 10:45pm
John Jenkings--If you're really a stickler for the plain language, then the Fifth Amendment has no public requirement at all. It says "nor shall private property be taken for public use, without just compensation." It does not say "private property shall only be taken for public use." The reason we have a public use requirement is because of precedents that defy the plain language of the Amendment. So if we're going to invalidate Takings precedents that are inconsistent with the plain language of the Fifth Amendment we can start by eliminating the public use requirement altogether.
7.31.2005 10:50pm
Anonymo the Anonymous:
To put it another way, Breyer and Souter, through their votes with the majority, have actually given free, informed consent to having their homes taken. Mr. Lorrey has not.
7.31.2005 11:10pm
Gene Vilensky (mail) (www):
To AF and others who are saying that because the Fifth Amendment never says that property cannot be taken for private use then that means that it can under a plain meaning of the text paradigm of interpretation...

Orin asked that question in February and received the following response from Mike Rappaport of The Right Coast:

Rappaport's Reply

The people who are arguing for "plain meaning" here are being somewhat sloppy, you are right. But no serious analysis of what the intent of the Framers was could lead one to conclude that takings by private entities was legitimate.

The thing that is most messed up with the Kelo case isn't even that New London was taking Kelo's property and then transferring it to Pfizer. The problem is that New London ceded its powers of taking to the New London Development Corporation, an entirely private entity. In essence, NLDC condemned the property and New London agreed to let its police be used as hired goons to force the Kelos out of their home. I think this point has been missed in all of the analysis. While the effect is disgustingly the same, the methods by which Kelo's property was condemned (by a private entity!) are so horrendous that Breyer and Souter deserve whatever grief they get from the Libertarian Party.

Imagine the federal government ceding the power to regulate interstate commerce to Halliburton and then let Halliburton use the FBI as its own private goons to raid competitors.
7.31.2005 11:16pm
Gene Vilensky, I never denied that an original intent paradigm of interpretation might lead to a public use requirement. I argued, as you correctly note, that the public use requirement is inconsistent with "a plain meaning of the text paradigm of interpretation." Plain meaning and original intent are different.

The big difference between plain meaning and original intent is that judges are unambiguously and uncontroversially required to follow the plain meaning of the Constitution, but not the original intent. If a judge held that private property MAY be taken for public use without just compensation, that would be, as John Jenkins put it, "interpreting the plain language of the Constitution to mean something other than what it says," and it would be illegitimate. If, however, a judge ruled that "equal protection of the laws" meant that racial segregation was unconstitutional, that would be inconsistent with the original intent of the Fourteenth Amendment, but not with the plain language, so it would be a legitimate decision.

Like Brown v. Board, Kelo is consistent with the plain language of the Fifth Amendment but not--according to Rappaport--consistent with the original intent. So it is controversial--originalists will disagree with it--but it is not illegitimate, at least not on the grounds of its interpretive methodology.
7.31.2005 11:58pm
And by the way, for those originalists and textualists among us, what I want to know is how the words "nor shall private property be taken for public use, without just compensation" ever came to be interpreted as a "public use" requirement in the first place. Clearly they require no such thing. '

The point is not that these words "require" or "forbid" any such thing. The point is that the government is never *AUTHORIZED* in the FIRST PLACE to take property for "private use."

Put it this way: Imagine that the due process clause had been phrased: "No one shall be held to trial for a criminal offense without due process of law." Now, technically, that doesn't say that "no one shall be put on trial for no reason at all." It is simply assumed that if someone is going to be put on trial, it's going to be for a "criminal offense," and the government is never even authorized in the first place to imprison innocent people for no reason.
8.1.2005 12:34am
Gene Vilensky (mail) (www):

My question is how could one do plain meaning without some sort of original intent? Of course, the lines have to be drawn somewhere as to what constitutes original intent jurisprudence in the service of plain meaning jurisprudence and what constitutes just original meaning.

As an example, to interpret the second amendment, one might need to know the definition of the phrase "well-regulated" in the 18th century. The modern definition probably has something to do with OSHA directives about ergonomic chairs and wrist rests for keyboards. But clearly in the 18th century it was something more akin to the term "well-maintained" or "kept in good order." So in that sense, original meaning analysis is necessary to do plain-text analysis.

I am not sure whether this kind of originalist analysis is necessary in Kelo to undertand the plain meaning of the text. As in, can the Fifth Amendment be understood via its plain meaning as anything but prohibiting private takings? Maybe yes maybe no. I would speculate that the clause immediately preceding the takings clause says that property can't be taken away without due process of law. But how can a private entity, in the Kelo case, the NLDC, use due process of law if it has no legal authority, being a private entity and not the city of New London itself. Do you see where I am getting at?

Furthermore, presumably, in the case of New London itself doing the taking and giving the land to Pfizer, what would constitute due process of law? That also would require some kind of originalist analysis to understand the plain meaning of the text.

Words change meanings and phrases that seem ambiguous now had more concrete meanings then. Some kind of originalist interpretation is always necessary. Even people who reject originalism engage in it. Otherwise, you can't do any kind of textual analysis of any kind of text. Imagine reading Shakespeare with a dictionary from 2005.
8.1.2005 12:42am
Don Meaker (mail):
So what should we do? Should we develop some wording to a constitutional amendment to clearly forbid private takings backed by government coercion? Perhaps we should write three amendments, as were necessary after the horrific Dred Scott decision. Perhaps we should relegate the Kelo justices to the same hell where we hope Chief Justice Taney serves for eternity?

Last time it cost hundreds of thousands of lives to create a condition for individual rights to be honored by state and local governments, rather than have them use their powers to oppress some for the benefit of the wealthy.

Perhaps we are smarter now. Perhaps we do not have a Lincoln to guide us through to a successful conclusion. The future is truely the "undiscovered country".
8.1.2005 12:45am
Kristen Chopra (mail):
I just don't understand why these people are targeting SC justices. If these people really want things to change, they need to lobby their congresspeople and get a bill passed that prevents incidents like the one in Kelo. Publicity stunts like this don't do anything beneficial--if anything, it just makes the NH Libertarians look silly. The story gives us a good laugh, but how does that help anything?

Personally, as a libertarian, I'm glad the SC didn't overturn the decision, because that would have been a flaming case of judicial activism. Which is why it really boggles my mind that so many conservatives are blaming this on the "liberals"...
8.1.2005 1:30am
Bryan Kerwick (mail):
Mr.Lorrey has the right idea. All the Justices who voted in the majority should have the same fate. When will KELO be overturned? Probably a few months after the Justices no longer are homeowners. There needs to be some sanity in this process. A look to the replacement clause of an insurance policy would be a good start. If Walmart wanted my property for another superstore, they should be required to replace it with another of the same like, kind and quality. It may anger and frustrate me to move but at least I would be fairly compensated. As it stands now, just compensation is a discretionary decision that is neither fair nor just.
8.1.2005 2:01am
Wow, there are like 4 people in the world who understand that Kelo upheld a 50-year-old precedent. And amazingly, all the discussion in the world hasn't managed to increase that number.

Everyone seems to be outraged at the state of the law after Kelo. But where were the 50 years of protests and marches on Washington regarding the state of the law BEFORE Kelo?

At least some people here are sharp enough to catch that a park is a public use no matter how you slice it. All of us are theoretically vulnerable to having our house taken for a park someday, and yet, we still manage to sleep at night.
8.1.2005 2:26am
42USC1983 (mail):
Someone wrote: "[T]here would be some poetic justice if some of them or their family members were killed, robbed ..."

Actually, Justice Souter was recently mugged. Story here. I didn't find anything "poetic" about it.
8.1.2005 2:59am
David M. Nieporent (www):

Kelo did not merely "uphold" a 50-year precedent (Berman, you mean). It extended it. And not only did it do so, but it took it to its logical extreme. There's a difference between "The limits of eminent domain can be extended to permit X" and "There are no limits to eminent domain." Yes, Berman was also an unwarranted expansion of government power, but after Berman, there was still at least the possibility that there was a logical stopping point. After Kelo, there's none. That's why there's more outrage now.

But yes, a park was a bad example, since parks are "public use" and since there's not much danger of abuse in creating parks, the way there is for creating pharmaceutical company headquarters.

Still, given Stevens' language about how the victims of the New London takings should turn to the state legislative processes, one gets the sense that the majority simply doesn't take property rights seriously. Can you imagine any of the judges in the majority saying that people should turn to the states if they want any of the other provisions of the Bill of Rights to be protected? Perhaps if one of these judges was evicted from his (or her) home, it might cause him to take a little more seriously the takings clause, instead of cavalierly dismissing the interests of individual property owners in favor of some local municipal boondoggle enacted under the pretense that it has something to do with economic development.
8.1.2005 4:38am
Brett Bellmore (mail):

Can you imagine any of the judges in the majority saying that people should turn to the states if they want any of the other provisions of the Bill of Rights to be protected?

Oh, absolutely: The 2nd amendment. I'm reasonably certain that the majority on the Court would take that position with respect to the right to keep and bear arms, if we could get them to stop refusing cert. to every case where the issue is raised.
8.1.2005 6:33am
By the prankster's "logic," we should shackle Justice Thomas to a hitching post in the Alabama sun. (If you want a crime, I say perjury for denying Anita Hill's allegations.)

We should also argue that Judge Roberts be arrested, handcuffed, jailed, and humiliated for whatever minor law violation he's committed just like he OK'd for that kid. We've all done something at that level of eating a single french fry in a no-eating area, so it shouldn't be hard to find a violation.

Of course, it's just a joke, and an unimaginative one at that. The guy who proposed taking Souter's home made a good point with humor. Hopefully, he has the good sense to know when to end the joke, and other potential pranksters come up with something new.
8.1.2005 9:15am
alkali (mail):
I was flipping through Cogan's The Complete Bill Of Rights (a one-volume "legislative history" reference for the Bill Of Rights) and noted that the orginial language proposed by Madison in the House in June 1789 was:

No person shall ... be obliged to relinquish his property, where it may be necessary for public use, without just compensation. [Cogan, CBOR]

The final version of that language in the July 1789 House "Committee Of Eleven" Report was:

... nor shall private property be taken for public use without just compensation. [Cogan, CBOR]

The omission of the "where it may be necessary for" construction arguably suggests that the drafters had intended to avoid subjecting eminent domain takings to any test of whether they were actually necessary for public use.
8.1.2005 9:36am
Henry Bowman (mail):
I don't think Mr. Lorrey's position is inconsistent with his being a Libertarian. His position does not violate the ZAP, as Souter, Breyer, et alia have rather plainly already attacked him as well as other residents of the U.S. who do not happen to have political power. What he's doing is considerably more civilized than some other actions he might take, plus there a bit of humor in it.
8.1.2005 11:17am
I would love for someone to quote me the language from Kelo that demonstrates it extends Berman beyond any logical stopping point. Kelo quite clearly reaffirmed the principle that eminent domain still may not be used to transfer property from A to B. And while it urged deference to the findings of state and local governments with respect to what constitutes a "public use," nowhere did it say that the determination has no constitutional boundaries. The fact is, Kelo was a garden-variety takings case which did not involve an arcane definition of "public use" at all.

The most common misreading of Kelo is that it held that a taking is automatically permissible if the new use will result in increased tax revenue. I defy anyone to show me language this strong from the opinion. Kelo was not a case where increased tax revenue was the only justification for a finding of public use, nor have I ever heard of eminent domain being used in such a manner; but if such a hypothetical case came before the Supreme Court, it is absurd to suggest that the outcome is already predetermined.
8.1.2005 11:21am
Tom Hanna (www):
"I assume this means that Mr. Lorrey is willing to have his own property taken, as well?"

Probably to the same extent that the Sons of Liberty were prepared to have their own cargoes dumped in Boston Harbor. The response to Souter and now Breyer is relatively tame given our history with respect to abusive government officials and the philosophy of our founding. It's not too unreasonable to observe that we've been disposed to suffer, while evils were sufferable, but of late these despots in their priestly robes have evinced a design to reduce us under absolute despotism.
8.1.2005 11:27am
It's fair to argue that Kelo was wrongly decided, but it's laughable to argue that the decision is an "evil[]" inflicted by "despots in their priestly robes" in order to impose "absolute despotism."

At worst, a democratically-elected government will take the land and give the owner a check for the land's value. Anyone who says that's "absolute despotism" has no sense of proportion. If you want to see how an "absolute despot" would handle a taking, look at Zimbabwe.

(P.S. As a matter of policy, I agree that Kelo takings are generally a bad idea. But there's a HUGE difference between a bad idea and "absolute despotism.")
8.1.2005 11:37am
GMUSL 1L (mail):

Recall Stambovsky v. Ackley? It just so happens to be my favorite case, and I see delicious applications of it to render tenure contracts for postmodernist professors (the ones who don't believe that language has meaning) unenforceable.

Similarly, I think the most appropriate way to describe this is that Souter and Breyer are estopped to deny that their property can be taken for public benefit under the Takings Clause.
8.1.2005 1:51pm
Dread Justice Roberts:
Regarding the textualist point of whether the 5th Amendment even requires compensation for taking private property for private use:

The Fifth Amendment provides, "No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Amendment requires compensation for taking private property for public use; otherwise, the government may deprive people of property, so long as there is due process.

Mike Rappaport's answers are not sufficient. All three of his answers suggest that there must be a constitutional basis for the takings power, but the Constitution only establishes a government of limited powers for the federal government. In Kelo it was an arm of a state government that was doing the taking. Textualists often complain that the Bill of Rights should not be incorporated as valid against the states in the first place, but even if it is, the Fifth Amendment does not prohibit States from taking private property for private use when it is supported by due process.

Another way to look at it is this: Every time a plaintiff successfully sues a defendant for money damages, the resultant order is a taking of private property for private use. The government takes money from the defendant and gives it to the plaintiff. This isn't a takings problem because there was due process. In the case of taking tract housing to make way for redevelopment, the due process of public planning supported by the local government is sufficient to take one person's property and give it to another.
8.1.2005 2:50pm
Some Random Guy (mail):

I assume this means that Mr. Lorrey is willing to have his own property taken, as well?

Um, no.

The guy is OPPOSING the Kelo decision. He didn't impose it as law on the rest of us. Now, if he were a supporter of the decision, then it would be o.k. to say his property should be seized. Otherwise, you're just saying, "First, we should use this great legal decision to take the land of those who are trying to stop us from doing it to others."

Which has a decidedly more fascist ring to it than I'm guessing you meant.
8.1.2005 2:52pm
Gil (mail) (www):
Some suggest that a park is automatically "public use".

That's not true. Some parks (think "amusement park") are private.

The article wasn't clear about who would own and manage the proposed park.
8.1.2005 3:15pm
Perseus (mail):
What's so strange about Mr. Lorrey's position? It strikes me as following in the populist libertarian tradition of someone like Thomas Paine (mentioned by Jim Lindgren in the next blog entry). Perhaps Justices Souter and Breyer should be tarred and feathered instead?
8.1.2005 4:35pm
I'm surprised (and scared) that so many people, presumably some of whom are lawyers or law students, have no problem advocating personal retaliation against a judge for issuing a decision that the people advocating retaliation happen to disagree with. Every person who has advocated extracting revenge on a judge in retaliation for a particular decision should be ashamed. I would suggesting posting a comment retracting your earlier support of this retaliation, if you have any conscience or respect for the rule of law.
8.1.2005 4:37pm
Guest, I agree that some of the posts are ominously serious. The original Souter joke was funny. It was perfectly acceptable (if somewhat pointed) satire. But some people just don't know when to let a joke stay a joke. Some people also lack the imagination to come up with new ideas to make their point.

And for the record, my comments about Rogers and Thomas were a joke. Their point was to show how ridiculous it is to call for personal retaliation against judges.
8.1.2005 5:20pm
Kelo was indeed wrongly decided or, more precisely, improperly before the Court. The Fifth Amendment limits the power of the national government, not the States, regardless of nonsensical notions of substantive due process (?!!). If the Constitution had actually been construed according to the meaning of the language it contains, the writ would never have been granted, no federal question having been presented. If the case had managed to find its way to the court on appeal (maybe a non-resident property owner as an appellant?), the case could have been decided entirely under Connecticut law -- Connecticut's constitution has a provision which in substance is similar to the Fifth Amendment's restriction on takings of private property. But perhaps it's too late for the Court to be an institution that follows any law other than its own pronouncements -- having made many ad hoc additions to the upper levels of the structure, it justifiably fears what might happen if even one of the extraneous cards is removed from the foundation level.
8.1.2005 6:01pm
Some Random Guy (mail):

I'm surprised (and scared) that so many people...have no problem advocating personal retaliation against a judge

Hmmm. So, should judges have more protective private property rights than the rest of us? Or should they be forced to live with the law that they themselves would impose on us?

Either you believe the state should have the power to do to these judges exactly as they would let New London do to the rest of us commoners, or you believe that the state should not have that power. If you believe the state shouldn't have the power, then, by all rights, the SC justices who claimed it does should be the first to feel its effects. If you believe the state should have the power, then what's your objection to using it? Would you prefer it to be used against only those you personally disapprove of?

(By the way, say what you will about this being too "personal," but don't you think the people whose homes were taken on the say-so of these same SC justices thought that the decision was "personal," as well?)
8.1.2005 7:10pm
What's wrong with giving judges payback for the effect of their rulings on the losing party? It's that almost every case has a losing party. We expect judges to rule for one side and against another. As I pointed out above, Some Random Guy's retaliation theory would have Justice Thomas shackled to an Alabama hitching post and Judge Roberts arrested for eating in public.

The Justice Souter humor was fine (and within the tradition of pointed political commentary). But taking the joke serious shows a lack of an understanding about what we expect judges to do.
8.1.2005 7:22pm
If the people whose homes were taken were targeted because of their political advocacy, I'd imagine they would have a Section 1983 claim. If, in fact, Justice Souter's hometown decided to tear down his neighborhood to build a baseball stadium, that's life. But if they decide to build something on top of his house because they don't like some case he decided, that's an abuse of government power. And for someone to petition the government to tear down Souter's house, or anyone's house, merely because of personal animus is wrong, regardless of whether the government would be entitled to take that same property for a legitimate public use.
8.1.2005 7:28pm
Mike Lorrey (mail) (www):
First of all, a hearty thanks to all those who enjoyed this story and/or support what we are doing and/or have had to explain the fine logic of the libertarian principle to others.

a) I am, in fact, holding Breyer to HIS standard, not my own. I would not hold the standard of the Kelo decision over anybody but the Kelo Five and the defendants in that suit (New London, New London Development Corp, its officers and directors, etc). I always welcome people to hold me to my own standards. I would expect no less, and as we are all fallible humans, I am no less deserving of advice and constructive criticism than anyone else (including anyone claiming the title of Judge or Justice).

b) in that score, I should explain why, other than the few explanations others have given, why our actions here in NH against Souter and Breyer are consistent with the libertarian principle of Zero Agression. The Zero Agression Principle says it is wrong to INITIATE force against others (as someone else noted). Using force in self defense, or in the defense of others, is not agression. Some alleged libertarians try to interpret ZAP as a form of pacifism. It is most decidely not, not in the strictest or loosest sense can it be construed to be pacifism. Statists (what we call all you who think government forcing innocent people to do things they don't want to do is okay), being statists, are by definition initiating force against libertarians 24/7.

For this reason the ZAP in its strictest sense can only be properly practiced between libertarians. The rest of you are beyond the pale and are "goin' to hell" as an evangelist friend likes to say. For this reason, a libertarians relationship to statists in their life is one long series of judgements of appropriate use of proportionate force in self defense. Whether it is passive agressive behavior, oppositional defiant disorder, not following the law when one isn't going to be caught, avoiding taxes whenever possible, refusing to engage in activities to disclose ones personal information, refusing to sign up for the selective service, or actually taking action against others, be it petitioning to eminent domain a supreme court justices property or taking up arms in self defense against attempted murder, rape, or robbery, it doesn't matter, so long as the type of force used is proportionate to that initiated against the libertarian.

As for Public_Defenders claim I am being unoriginal: I, Ed Naile of the CNHT, John Babiarz, and others were planning the original action against Souters property when Mr. Clement got wind of it and scooped us in the press. So who is unoriginal now? As it is, Clements request to the Selectboard of Weare was refused, so he now is depending on our action to use referenda petitions and legislation to accomplish his end. He is working hand in hand with us now.

As for the question about why we are persuing a park rather than a private use: Souter's land will try to push back the private development loophole. We want to push the definition back to the original 'roads and bridges' use of eminent domain, where it properly belongs. Eminent domain is a relic of the divine right of kings. We stopped having a king a long time ago, and IMHO eminent domain is obsolete for free people just as slavery is, because we are all sovereign individuals with our own natural rights to life liberty and property. We got rid of slavery, now it is time to get rid of eminent domain. Even conservatives agree that government gets its powers by delegation from the people AS INDIVIDUALS. It logically follows that anything that is wrong for individuals to do should also be wrong for governments to do.

Now that these issues have been clarified, I want to direct your attention to a website if you wish to support the effort to build Constitution Park and encourage others to take similar action in other states against the other three members of the Kelo Five. "Judicial Immunity" is only a restraint upon executive censure and punishment of judges for their judicial acts. I don't regard Kelo as 'judicial', it is rather 'unjudicial'. Judicial immunity is a restraint upon actions originating in government against judges, holding said judges to standards those judges refuse to accept. It is not a restraint upon actions by the people holding judges to their own standards.

Thanks all for your support.
8.3.2005 6:27pm
DC Lawyer:
The amount of misinformation in these posts is startling. Some of you should really READ THE DECISION instead of accepting as gospel press accounts and Castle Coalition spin.

First, please understand the facts of the case. No property was taken to give to Pfizer. The Pfizer Corporation plant was already built. The areas that were to be take are for other commercial and hotel development in areas adjacent to the Pfizer plant. The Pfizer decision may have sparked this economic development plan -- which was promulgated after a long public comprehesive planning process -- but none of the land sought by New London is going to Pfizer. Read the case.

Next, it's simply laughable that this extends Berman and Midkiff to "their logical extremes." If anything Kelo actually cabins eminent domain law by imposing new hurdles.

First, the opinions (particularly the concurrence) suggest that there be no identified beneficiary. In other words, Poletown might be problematic because that land was specifically sought by and given to General Motors. But a decision to condemn and redevelop an area which will then be sold to future private entities to be determined later is less problematic as it suggests no unfair dealing. Despite beliefs to the contrary, that's actually the case in New London.

Second, the opinions stress the importance of a comprehensive plan. This is not random government action; this is an informed democratic process at work. See Euclid v. Ambler.

Third is the limitation that communities actually be suffering economic distress, as New London clearly was.

Whether these are binding tests will be born out by future litigation, but what's very clear is that there's simply no evidence in the case to support the idea that this is a dramatic extension of precedent.

Lastly, under my reading of the case these efforts to target Souter and Breyer, while theatrical, would fail under the Kelo test as stated above, because it 1) targets individuals because of who they are (a fact which suggests the takings would fail on a straightforward due process or equal protection defense); 2) their communities are not suffering economic distress; and 30 there's no comprehensive plan or process supporting the taking.

It's amazing the things you learn when you actually read Supreme Court opinions.
8.3.2005 6:54pm
Sure, DC Lawyer, misinformation in the comments, but what you're likely to learn reading Supreme Court opinions isn't constitutional law, but the meandering course of the policy preferences of the justices on the court, badly disguised as interpretations of interpretations of interpretations, far removed from the fundamental law itself.

That the Kelo case was decided under federal constitutional law which plainly applies only to actions by the national government, not the states, when the state constitution itself contains a provision under which all of the issues could have been resolved, shows the great length to which the Court will go to preserve the absurd notion of substantive due process under the 14th amendment. Kelo stands as a glaring example of abuse of government power -- but federal government power as exercised by the Court, not state government power. We have arrived at the point where an important but for much of our history untrue assumption of the the framers has become reality -- the States are more reliable guardians of individual liberty than the national government. Had the Court ruled correctly according the the facts of Kelo -- that there was no basis for federal court jurisdiction -- it would have greatly improved the health of our federal system. An opportunity lost.
8.4.2005 9:39am
DC Lawyer:
Ah, but here's where it gets interesting, Anonymous, the framers of the 13th, 14th, and 15th Amendments clearly did NOT think that "the states are more reliable guardians of individual liberty than the feds."

We could dedicate an entire blog to the question of whether the incorporation doctrine is correct, but the question is not nearly as simply as you suggest. It would please me greatly if there were no federal court jurisdiction for takings claims against states and local governments, being as I am an apologist for government, but I don't believe that is a coherent view.

I also think from what I've read of the debates of the ratification of the Civil War Amendments, that the notion their framers did not intend to incorporate the bill of rights against the states is unpersuasive.
8.4.2005 10:18am