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Lost Liberty Hotel:

I see that the Lost Liberty Hotel project is still going. I frankly had assumed that the whole thing was a joke at the time concocted to create media attention around the Kelo issue. In fact, it appears that the sponsors of the hotel are continuing to move forward with the project. They are in the process of collecting petition signatures to place an initiative on the local ballot for the Town of Weare to take Justice Souter's farm and convert it into an inn for purposes of economic development. According to their web site (I haven't independently verified the rules of the Town of Weare for such initiatives), they claim that it only takes 25 signatures on a petition to place an item on the local ballot. They also claim taht 1418 people have pledged to stay at the inn if constructed, which they argue adequately demonstrates the prospect of economic development from construction of the inn.

Given the small number of signatures necessary to place an initiative on the ballot, presumably they will reach the necessary number (they aim to get much more than 25). The petition itself is here. As I read it, the language appears to require the Town Council to exercise its eminent domain power for the designated purpose (rather than simply urging the Town Council to do so). It also creates a trust fund for this purpose, but the language doesn't seem to make the Taking of the property contingent on raising sufficient funds to provide "just compensation."

Thus, as strange as the whole thing seems, it appears that the Lost Liberty Hotel project will be placed on the ballot for the March 2006 Town election. The deadline for submitting the signatures is January 2006. It is hard to imagine that the town's voters actually will approve the project at that time (notwithstanding the optimistic voting projections of the sponsors of the project), but it appears that Justice Souter will have to deal with this headache for at least another few months at least.

DNL (mail):
When to Vogons come to build their intergalatic bypass, I hope they go after Souter first -- and the proprietors of this "Hotel" second.
12.9.2005 8:48am
RJL (mail):
I'm not aware of anything in NH law that allows a taking to occur under those circumstances.

The only provisions in NH law that could possibly apply are: here
and
here

I seriously doubt the little town of Weare has set up these agencies in a way that would permit a taking. It continues to be a joke (or at least a farce).
12.9.2005 9:03am
Bob Bobstein (mail):
This is awesome!! Hey, let's stand outside Scalia's church this Sunday and scream the mass out in English, just to piss him off!
12.9.2005 9:05am
RJL (mail):
OK, so I can't create a link, sue me.

The NH law webpage is:

http://www.gencourt.state.nh.us/rsa/html/nhtoc.htm

and the statutory references are RSA 162-K and RSAs 203 and 205
12.9.2005 9:07am
Jack the Law Talking Guy (mail):
You know, when this little project first came up, I remember tons of folks referring to this as an effort to strong arm judges and eliminate "judicial independence." I was sort of on the fence, but leaning a little towards thinking the project was inappropriate--but Bob Bobstein's comment above makes me wonder. Do liberals really see a difference between asking judges to abide by and live under the same law they pronounce for the rest of us and simply stalking them and screaming at them while they try to attend church with their families?

The shame is, I don't think folks like that see one bit of difference, and it seems like they make up a large portion of our profession.
12.9.2005 9:22am
Bob Bobstein (mail):
law they pronounce

Souter did not make a law requiring the condemning of anyone's property. He interpreted the Constitution to permit the town's actions in this instance. The shame is, those such as Jack, who make up a large portion of our profession, don't see one bit of difference between judges voting for policy preferences and judges interpreting the law.

Yes, this Hotel project is harassment, plain and simple. "Because you don't accept our [arguably newly minted, but that's a discussion for another day] view of the Fifth Amendment, we're going to start (maybe pretend, at least headache-inducing according to the post) threatening to take away your house." Disgraceful.
12.9.2005 9:35am
Bob Bobstein (mail):
Just to be clear-- the Hotel project is disgraceful, not anything Jack said.
12.9.2005 9:35am
Andy Freeman (mail):
Would it have been okay to take Souter's house before Kelo? How about to take it if he'd voted the other way on Kelo?

If the law allows the taking of my property to increase tax revenue, why is it disgraceful to take Souter's?

Surely it can't be that only the politically weak should be subjected to taking. (I doubt that anyone will be foolish enough to suggest that politics don't come into play when a local govt makes taking decisions.)
12.9.2005 10:26am
Ken Alfano (mail):
"Souter did not make a law requiring the condemning of anyone's property."

But isn't the general objection to activist deviation from original understanding essentially that it is in fact "making law" as opposed to interpreting it? And if so, why should judges not be held as accountable as we would hold legislators/policymakers -- if after all that is what they are acting like?
12.9.2005 10:31am
RJL (mail):
The Kelo's property was not targeted because of the way they did their job.
12.9.2005 10:54am
Bob Bobstein (mail):
why is it disgraceful to take Souter's

It is not any conceivable taking of his property that is disgraceful; it is the mounting a campaign targeting him as a result of his application of the law in a case.

held as accountable

You may favor some mechanism for enhancing political accountability of judges. But it is not "holding him accountable" to target his house.

Also, it is unclear what the original understanding is, generally and in regard to "public use" specifically. Plus, not all jurists (Scalia calls himself "faint-hearted") accept the idea that the original understanding, if it is known, should determine the outcome of a given case. So, you are free to believe that it is "activist" to uphold the original understanding, but I think that only one person on the SC agrees.

A neutral, possibly unhelpful definition of "activist" is a judge who elevates his view of the Constitution on a disputed issue over that of the legislature-- otherwise, an "activist" can boil down to "someone I disagree with." Prof Volokh posted on this a few weeks back, regarding a 9th C decision on what schools can say to kids.
12.9.2005 10:55am
go vols (mail):
Ken,

Souter is letting the democratic process work (badly or otherwise). Saying that deferring to an elected body is "making law" twists the normal meaning of that phrase and activism alike. You might argue that it's a bad decision, but how can you say it is "activism"? Is activism only those judicial decisions that you don't like? The orginalist position on this is, in my opinion, incoherent. A liberal could just as easily say that given his understanding of constitutional theory, Griswold is not activist because it refines and reflects the "real" beliefs of the American people regarding privacy. Once we get beyond "deferred to democratic branches" and "struck down act or law of democratic branches" for our definition of restraint and activism, the discussion breaks down pretty quickly. Under this parlance, activism and restraint are neutral terms that do not themselves suggest a "good" or "bad" constitutional decision.
12.9.2005 10:56am
Bob Bobstein (mail):
FWIW, left-wing blogosphere was just as hopped up over this as their right-wing counterparts. I don't think this is a liberal-conservative issue.

Regardless of anyone's concern about the policy implications of the decision, it doesn't make it a Good Thing to mount a campaign to take away a judge's house and replace it with a hotel named to mock him.
12.9.2005 11:03am
Ken Alfano (mail):
Bork (with whom I most agree on "activism") says that activism is not about deferring or not deferring to legislative branches, but about sticking to what the constitution actually says (or at least a plausible, honest view of what it *actually* says). So, if Souter would (hypothetically) agree that the framers and others at that time didn't think Kelo would be constitutional, that he should not deviate from that for any reason.
12.9.2005 11:07am
MDM (mail) (www):
The left wing and right wing were outraged over Kelo for decidedly different reasons. On the left it was "Wal-Mart rules the government and is coming for your house!" On the right it was "Big Guv'mint is coming for your house!" Neither seems accurate to me as a decription of Kelo's (relatively minimal) effects on the power of eminent domain.
12.9.2005 11:07am
dick thompson (mail):
At what point do the judges stop deferring to the city and say that what the city was trying to do by taking property from private people to sell it to other private people because it would raise more taxes for the city was wrong. After all the city claimed it was taking it for Pfizer but Pfizer had already built their HQ. Why then should the city have taken the proerty - to build a hotel and marina? Good choice. Build a marina so rich people can park their yachts and get drunk there since Connecticut has no marinas already.

Where do you draw the line at eminent domain?
12.9.2005 11:14am
Bob Bobstein (mail):
But Ken, the whole point is that some people think the Constitution says X and others think it says Y; and some people think the Framers meant X while others think they meant Y; and not many Justices think that whatever the Framers think should necessarily control in a given case.

So we get back to "activist" being reduced to a more-grown-up-sounding way of saying "wrong, I disagree!"
12.9.2005 11:15am
Steve:
Of course judges should be subject to the same laws as the rest of us. That's not the point. The petition to build this hotel is not a good-faith action, but an act of personal retribution against a judge who made an unpopular decision. And their protest, to some extent, is occurring on the taxpayers' dime.
12.9.2005 11:17am
RJL (mail):
"And their protest, to some extent, is occurring on the taxpayers' dime."


Not in any significant way. The vote will occur at a town meeting, so the only costs are the added couple of lines in the warrant article that will need to be printed ahead of the meeting.

Of course, if the town attorneys get involved...
12.9.2005 11:19am
Ken Alfano (mail):
Bob,

I believe you conflate two very different matters. If someone believes in good faith that the original understanding is Y instead of X, that is most fair. That is why we have judges (and nine of them on the high court).

But it's the other issue -- saying that even if we could agree on the original meaning that it should still not necessarily control -- where I think we cross a critical line into lawlessness.
12.9.2005 11:19am
Monkberrymoon (mail):

it doesn't make it a Good Thing to mount a campaign to take away a judge's house and replace it with a hotel named to mock him.


Well, let's parse it a little more. I'm not defending the actions of the activist group, but it's obvious that the point is to show people that under a Kelo regime there are no limits to what takings may occur apart from (1) those takings that aren't for economic gain; and (2) whatever brakes the legislature wants to put on the process. As has been (rightly) pointed out in this blog, the subjective desires of whatever group comes up with the idea are irrelevant to the legal issue. The only question is whether the taking authority (in this case the municipality) can justify the transfer on an economic basis (and they probably will be able to, if it gets that far).

Of course, the point is that it shouldn't get that far. If the group goads NH into enacting laws against this kind of wealth transfer they've probably achieved their purpose.
12.9.2005 11:21am
RJL (mail):
"If the group goads NH into enacting laws against this kind of wealth transfer they've probably achieved their purpose."

NH would have fixed it without these fools.
12.9.2005 11:35am
Bob Bobstein (mail):
saying that even if we could agree on the original meaning that it should still not necessarily control — where I think we cross a critical line into lawlessness.

Ken— Then we have 8 lawless Justices.

Scalia: "the real dispute that appears in the case [is] not between nonoriginalists on the one hand and pure originalists on the other, concerning the validity of looking at all to current values; but rather between, on the one hand, nonoriginalists, fainthearted originalists and pure-originalists- accepting-for-the-sake-of- argument-evolutionary-content, and, on the other hand, other adherents of the same three approaches, concerning the nature and degree of evidence necessary to demonstrate that constitutional evolution has occurred."

Monkberrymoon: that may well be the point the activists believe in, and I hope NH passes a good law. But my point is that causing "headaches" in the personal lives of judges who make determinations that we don't approve of is a Bad Thing for Truth, Justice, and the American Way.
12.9.2005 11:36am
E S Cioe (mail) (www):
They ought to leave the poor guy alone. He is 66 and lives with his mother. Clearly he's not trying to do anything tyrannical.
12.9.2005 11:44am
Douglas Brackman:
I am sure this is a hoax and will not actually make it onto the ballot and can't believe that Todd takes it any more seriously. But even suspending disbelief for the moment, I highly doubt that such a "taking" would indeed be constitutional. Unlike as was the case in Kelo, here the genesis of the project is plainly not a public-minded initative and I doubt that the court would find the thin and self-evidently contrived pretext that the goal is to increase hotel revenue to be persuasive enough. Justice Kennedy, the necessary fifth vote in Kelo, was explicit about this in his concurrence which stated that a taking should not be deemed constitutional when it "is intended to favor [or disfavor, one must assume] a particular private party, with only incidental or pretextual public benefits" and should be struck down by a court "just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications." This woud be the easiest case imaginable of a "public use" serving as a pretext for an impermissible agenda, in this case the vulgar agenda of people who seek to punish a jurist personally for his good-faith views on the law. Souter obviously has nothing personal to gain from Kelo, and it is repugnant for critics of the opinion to target him personally just because he doesn't reach the result that they would have. Imagine if someone launched a semi-serious campaign to impregnate Scalia's daughter to punish him for his views on abortion or to detain Justice Thomas in Gitmo because of his views in the Padilla case.

How funny would it be to lawprofs then?
12.9.2005 12:10pm
A. Nonymous (mail):

I am sure this is a hoax and will not actually make it onto the ballot and can't believe that Todd takes it any more seriously.


(Following repeats part of a comment from another post, so please forgive me).

In South Dakota, a constitutional amendment called J.A.I.L. 4 Judges got enough signatures to go on the ballot in 2006. The JAILers (their term, not mine) used Kelo as their rallying cry and on their literature to prove the judges were coming to take people's houses.

J.A.I.L. however does far more than take one Supreme Court justice's house and turn it into a hotel. It eliminates judicial immunity (and quasi-judicial to boot), subjects every judge in the state to civil suits (retroactive) AND permits criminal prosecutions of judges based on their decisions if indicted by a "Special Grand Jury". It is in effect "legal" version of the common law courts movement of the 1990s.

See here and here

Official text and status from the SD Secretary of State here

Moreover, they've got momentum using Kelo to go for Nevada and Idaho versions as well. Coupled with low signature requirements (34-40k) and willing to pay the $3-$5 a signature these signature gathering companies are asking, for the "low, low" price of $250k, Kelo is getting J.A.I.L. 4 Judges all it needs.

Add to this that J.A.I.L.'s belief that there's a NWO/Federal Reserve/banker conspiracy to seize all property, and you have a recipe for disaster. J.A.I.L.'s pointing to Kelo and saying in effect that they are right and for a lot of people, the perception is that they at least have a point (property seizure, "unaccountable" judges, etc.)

The NH case may or may not be a hoax, but these type of "get the judges" ballot initiatives are no hoax. Not that these things will pass mind you (and if they do, they'll be held unconstitutional 5 minutes later), but they are going to get on the ballot and thereby attention.
12.9.2005 12:47pm
Andy Freeman (mail):
> Of course judges should be subject to the same laws as the rest of us. That's not the point. The petition to build this hotel is not a good-faith action, but an act of personal retribution

Eminent domain decisons are almost always made with politics in mind, including personal retribution.

Why shouldn't Souter be subject to politics when the rest of us are?

BTW - I also asked if it would have been okay to take Souter's house before Kelo to turn it into a liberty hotel. (Before Kelo, it's not retribution for a vote; it's just application of existing law and practice.)
12.9.2005 1:04pm
RJL (mail):
I am sure this is a hoax and will not actually make it onto the ballot and can't believe that Todd takes it any more seriously.


NH is a state with a long tradition of local government activism at town meeting. Its not even a ballot question, as I understand it, but a question to be voted on at town meeting, probably along with questions dealing with whether to approve the expenditure for a new ambulance or a new playground. That's just the way it is up here. I would not be AT ALL surprised if this showed up as a question for vote at the Weare town meeting.
12.9.2005 1:13pm
Bob Bobstein (mail):
I responded to you above, Andy. It is not any conceivable taking of his property that is disgraceful; it is the mounting a campaign targeting him solely as a result of his application of the law in a case. Also, as Douglas Brackman wrote, "Imagine if someone launched a semi-serious campaign to impregnate Scalia's daughter to punish him for his views on abortion or to detain Justice Thomas in Gitmo because of his views in the Padilla case."

If other eminent domain decisons are motivated by "personal retribution," as you write, they are equally disgraceful, and, as Douglas Brackman points out, unconstitutional under Kelo.
12.9.2005 1:15pm
David Matthews (mail):
Constitutional scholars help me out here -- where and when did Scalia rule that laws allowing forced impregnation were constitutional?
12.9.2005 1:43pm
SimonD (www):
Bob - where's that Scalia quote from?
12.9.2005 1:52pm
Bob Bobstein (mail):
David-- please be advised that Douglas Brackman was referring to Scalia's views on abortion (Scalia believes that the Constitution does not protect such a right). Also, note that no one on this thread has mentioned forced impregnation of anyone.
12.9.2005 1:53pm
Bob Bobstein (mail):
SimonD: University of Cincinnati Law Review
1989, ORIGINALISM: THE LESSER EVIL, Antonin Scalia
12.9.2005 1:57pm
SimonD (www):
even suspending disbelief for the moment, I highly doubt that such a "taking" would indeed be constitutional. Unlike as was the case in Kelo, here the genesis of the project is plainly not a public-minded initative and I doubt that the court would find the thin and self-evidently contrived pretext that the goal is to increase hotel revenue to be persuasive enough.
Well, I suppose that if it is an unconstituitonal taking (which, post Kelo, I doubt - which, of course, is the point) Souter could litigate against it all the way to the Supreme Court. But of course, when the case REACHED the court, Souter would presumably have to recuse himself from the case, thereby - in one fell swoop - putting the issue back onto the docket and depriving the Kelo majority of its fifth vote. The question then becomes one of, does Souter win in the appeals court, or has public condemnation reached a point where Justice Kennedy will change his mind, and thus becoming amenable to overuling Kelo 5-3?
12.9.2005 1:58pm
Bob Bobstein (mail):
A better quote for me to pull from this article may have been: "I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case's arising either."

My point isn't that Scalia's a hypocrite (if that were my point, I'd have talked about his undeclared retreat from originalism in affirmative action cases), just that very few people agree with Ken about originalism.
12.9.2005 2:02pm
SimonD (www):
SimonD: University of Cincinnati Law Review
1989, ORIGINALISM: THE LESSER EVIL, Antonin Scalia
Oh, okay - I had assumed that it was a more recent quote that referred to Kelo, which is how it looked in the context in which you presented it.
12.9.2005 2:05pm
SimonD (www):
A better quote for me to pull from this article may have been: "I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case's arising either."
Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 at 864, to see it in context.
12.9.2005 2:07pm
Bob Bobstein (mail):
SimonD-- sorry you missed the point at first-- I presented it in the course of a discussion with Ken Alfano.
12.9.2005 2:14pm
Andy Freeman (mail):
> I responded to you above, Andy.

You ducked the "before Kelo" question.

> It is not any conceivable taking of his property that is disgraceful; it is the mounting a campaign targeting him solely as a result of his application of the law in a case.

Can folks target Roberts now? Can they go after Souter's house in 10 years? If not, when? If never, then why are judges immune to eminent domain under Kelo's terms?

>If other eminent domain decisons are motivated by "personal retribution," as you write, they are equally disgraceful, and, as Douglas Brackman points out, unconstitutional under Kelo.

Yet, while eminent domain decisions always have politics, only Souter seems to have that work in his favor.
12.9.2005 2:41pm
David Matthews (mail):
Bob:

"Imagine if someone launched a semi-serious campaign to impregnate Scalia's daughter" doesn't imply forced? She'd be willing? In that case, what does a wanted pregnancy have to do with abortion? And why, even if the campaign were successful, would it make Scalia regret his views on abortion? I'd think it would make him go out and buy gifts to spoil his new grandchild.

The analogy to this (I agree, stupid) stunt to "stick it to" Souter is strained, at best.
12.9.2005 2:56pm
Greedy Clerk (mail):
Although I think Kelo was probably correct as a matter of constitutional law, I think this little effort is not that offensive --- just as I though the guy who asked Scalia about whether he engages in sodomy was right on. Why should Supreme Court Justices be above protest, and be above being asked whether they truly will act in conformity with their decisions??
12.9.2005 3:14pm
Bob Bobstein (mail):
Andy-- Re: your "before Kelo" question-- My objection, as you quoted, is to "the mounting a campaign targeting him solely as a result of his application of the law in a case." If there were a city plan that involved the possible taking of a justice's home before Kelo, then it wouldn't be retribution. This is not such a city plan. I don't advocate any "immunity to Kelo" for justices; rather, I argue that activists trying to cause headaches in the personal lives of judges because they disagree with legal detrminations is a bad thing.

David Matthews: I thought of Douglas Brackman as describing a movement to encourage a suitor of Ms. Scalia to encourage her to be incautious, such that consensual activity led to unwanted consequences. I don't care to persue this line discussion anymore. His point was, messing around with private lives of judges because we disagree with their opinions is bad. I agree with it.

I also didn't like the question about sodomy to Scalia, and I didn't like it when whoever it was protested on Karl Rove's lawn. So maybe I'm just humorless or old-fashioned.
12.9.2005 3:35pm
Debauched Sloth (mail):
I can only assume that most of those who think the proposed taking of Justice Souter's home wouldn't pass constitutional muster have never actually litigated a rational basis case (which Stevens and Kennedy both agree is the post-Kelo standard). Under that test, it is irrelevant what actually motivated the government as long as it might have been motivated by some conceivable public purpose. With respect to the Lost Liberty Hotel, there seem to be at least two (arguably) legitimate purposes other than simply punishing Justice Souter: (1) subsituting his low-value use of the property with a higher value use; and (2) providing a civics lesson for other citizens and judges about what tyranical majorities can do to people when constitutional limits are not faithfully enforced. In my view, both of those goals are plainly "conceivable" motivations for the proposed taking. If that is true, I assume the judicial minimalists out there would not favor the idea of unelected judges interfering with this taking based on their own personal, purely subjective conclusions about the "true purpose" behind the taking -- i.e., that it is clearly and solely being done to punish Justice Souter and not for any other possibly legitimate reason. Or would they?
12.9.2005 4:23pm
Honest Question:
I haven't read Kelo in a while, but doesn't it protect against this sort of taking?

My question comes from the vague memory (and I haven't re-read the case) that the SCOTUS stressed the fact the New London had a general plan for economic development; and that part of the generalness of this plan was that it wasn't an attempt by one private party to use the government to harrass another private party.

Is this right?
12.9.2005 4:53pm
Honest Question:
Oops. I failed to read Brackman or the response right above me before I posted.
12.9.2005 4:54pm
Douglas Brackman:
Sloth,

Imagine a situation where a legislature didn't just draw up a tax scheme that had the consequence of only affecting gay businesses -- but that the move came as the result of a referendum in which nearly all of the rhetoric of the referendum's supporters was about punishing gays who had the audacity to move to the community. I think pretty clearly that the court would find room even under a rational basis standard to invalidate it. (Cf. Romer v Evans). In the real world, ugly rhetoric counts, even under rational basis.

In any case, the court in Kelo certainly left itself room to choose a more exacting rational basis review than it typically engages in under equal protection analysis, and I think that upon a second look, the court would certainly draw the line at what is being done here since it is pretty much a core violation of the "public use" clause (and that's putting aside the fact that in the bizzaro world where the Souter situation actually came to the courts, the case would, at the very least, have to be heard by an 8-judge Supreme Court with Souter having to recuse himself).
12.9.2005 5:14pm
Debauched Sloth (mail):
Good point Doug, and I think the Supreme Court might well fudge the rational basis test in this case (as it did in Romer, much to its credit) enough to save Justice Souter's home. Of course, that would leave John Q. Public wondering whether they saved the home because it belonged to one of their colleagues or because they felt the taking really did violate the nearly indiscernable outer boundaries of their concept of "public use."
12.9.2005 5:26pm
LeeKane (mail):
Say Supreme Court Justice XYZ voted to strike down regulations prohibiting the showing of X-rated fare on local broadcast TV during the afternoon. Then say a "morality" group pulled together funding to sponsor X-rated fare in the Justice's hometown, so that his family and, say, children would be put at risk of encountering it. Would this be viewed as a horrible stunt?

I find it interesting that some on this board find it outrageous that a group seeks to bring about the consequences that a Supreme Court ruling enables, as if it was a great injustice and farce. Hasn't the SC ruled that it is, in fact, eminently just, or at least Constitutional (same thing?).

Is it inconceivable that Kelo will bring about just the type of action this hotel group is attempting in other contexts? I have read that Kelo-type seizures in some corrupt New Jersey districts are proceeding apace, motivated by political favoritism rather than "vengeance" -- but does the personal motivation matter as long as some arguably "plausible" official motivation falls within Kelo's scope?

That said, I feel a bit sorry for Souter.
12.9.2005 9:28pm
KarlC:
Of course taking Souter's property is "disgraceful". That's the point. They are demonstrating that Kelo is bad law, not trying to defend it.

Even though this may not pass muster under Kelo, it will strike a deep chord in many Americans. As soon as a court strikes it down for any reason it will be perceived as an exception for the rich and powerful.
12.10.2005 12:32pm
TDPerkins (mail):
Bob Bobstein wrote:

"Souter did not make a law requiring the condemning of anyone's property."

He certainly made up a new clause to the Constitution. Even though it still has the same words, it doesn't say "public use" anymore.

Yours, TDP, ml, msl, &pfpp
12.10.2005 12:44pm
TDPerkins (mail):
RJL wrote:

"The Kelo's property was not targeted because of the way they did their job."

Well, Kelo impied their most basic job was to pay taxes, and they didn't do a good enough job of it.

Souter's job is to make judgement's about what the Constitution says, and he didn't do a good enough job of it.

Yours, TDP, ml, msl, &pfpp
12.10.2005 12:45pm
David M. Nieporent (www):
I can only assume that most of those who think the proposed taking of Justice Souter's home wouldn't pass constitutional muster have never actually litigated a rational basis case (which Stevens and Kennedy both agree is the post-Kelo standard). Under that test, it is irrelevant what actually motivated the government as long as it might have been motivated by some conceivable public purpose.
Yep. Moreover, the Kennedy language cited above has no legal force. Kennedy joined the majority opinion. That he also wrote a concurrence where he threw in some caveats is irrelevant; that's pure dicta.
12.10.2005 11:58pm
The Original TS (mail):
I wonder of the prohibition on bills of attainder would stretch to this. It probably should as it's clearly meant as punishment. I doubt, for example, that a legislature could constitutionally pass a law exercising eminent domain on any property owned by Paris Hilton and then dress it up as an ordinary taking on the grounds that she lowers property values and depresses the tax base.
12.11.2005 2:34pm
therut (mail):
The best a person can do in the US to stay as free as possible is do not live within any town, city or incorporated area. I knew that from a young age. You still have Federal, State and County laws and regulations but these are less intrusive. At least for now. It is amazing how much more freedom you have. No building regulations, no trash regulations, own enough land and drinking and driving is no problem, neither is shooting or carrying of firearms. Don't even have to register vehicles you only drive on your own property. The list is endless.
12.11.2005 11:49pm
ANM (mail):
This debacle is a bit nettlesome for libertarians, as some, if not most, likely say that this violation of property rights is not in self-defense, and that despite Souter's ruling in Kelo, this scheme is unethical.

The problem is that the Constitution generally is a fundamentally partisan document - it seeks to restrict government. Therefore, any judge with an adverse view (perhaps not a necessary condition) and a palpable refusal to respect the constitution will try to circumvent it, or reinterpret it so much as to reverse its commitment to restricting government. This much is self-evident.
12.11.2005 11:59pm