3/15/2006

Souter Or Later Its Gonna Be Mine

Its been a while since we bickered about Eminent Domain...
Now the way these eminent domain cases have gone down has caused more than a few of us on the right AND the left to do some head scratching. First, we have to consider the role of preserving private ownership rights and under what circumstances it is acceptable to circumvent that idea. For the good of the public? WHAT is good for the public? Something everyone will use? Or something that is deemed more 'useful' than what is in existence? Can we make distinctions between roads and a casino? And how do different ideas about 'blight' factor in?


Below I have referenced an article about the property of Justice Souter, and I included the full text because I think there are some other matters- for example, the sentiments of Judge Thomas. And I think it's a 'feel good' piece for the twisted among us.The article presents the discussion and some of the concerns in a useful way. As the issue changes over time, what do you think of the opinions of the Justices compared to their typical positions on the fluid or static nature of the law? Where do you stand on the right of the government to take your propoerty, and does it matter if it is taken for a private company as they have determined to be permissable?


March 14, 2006
Op-Ed Columnist
Supreme Home Makeover
By JOHN TIERNEY

WEARE, N.H.

When we reached Justice David Souter's home, a ramshackle old
farmhouse along a dirt road, Keith Lacasse explained his plans for it
if he's voted onto the town's Board of Selectmen in the election
today.

The first plan, which Lacasse and his friends drew up right after
hearing of Souter's vote in the Kelo eminent-domain case last year,
was for the town to seize Souter's property and turn it into a park
with a monument to the Constitution. But then Lacasse, a local
architect, switched to an idea proposed by an activist from
California: turning it into the Lost Liberty Hotel.

"Actually, it would be more like a bed and breakfast," Lacasse said.
"We'd use the front of the house for a cafe and a little museum.
There'd be nine suites, with a black robe in each of the closets."

So far Souter has not joined the local debate on the proposal,
something that makes him fairly unusual in this country town near
Manchester. The Lost Liberty Hotel has dominated the campaign debate
and the pages of The Weare Free Press. There seem to be two main
factions: those who oppose the Kelo decision and want to punish
Souter by taking his property, and those who oppose the Kelo decision
but want to leave him alone.

"I don't agree with the decision, but I love David to death," said
Matt Compagna, a mechanic. "When our barn burned down, he was there
at 3 a.m. helping us. Coldest night of the year. He's a decent man.
Why should he lose his house even if he made the wrong decision?"

The answer from Lacasse and a fellow candidate running on the same
issue is that taking the house would serve a larger "public use" -
the same reason given in the Kelo decision for taking people's homes
in New London, Conn. That 5-to-4 decision set off a revolt in Weare
and across the country because of the way Souter and the rest of the
justices in the majority interpreted the Fifth Amendment phrase.

Most Americans have the traditional idea that property can be taken
for "public use" if it is actually going to be used by the public as,
for example, a road or a park. But that definition gradually expanded
over the last half-century as the Supreme Court ruled that property
could be seized and turned over to private parties if there were
special circumstances and an overriding public benefit, like
eliminating "blight" in a poor Washington neighborhood or breaking up
an land oligopoly in Hawaii.

The Kelo case, however, went way beyond those decisions, allowing the
town of New London to seize property that wasn't blighted simply
because it thought it could find a developer to make better use of
the property. It was a new version of the field of dreams theory: if
you tear it down, they will come.

"The Kelo decision wasn't compelled by legal precedents," says
Richard Epstein, a law professor at the University of Chicago. "It
wasn't a case of eliminating blight or breaking up an oligopoly.
There was no precedent for kicking people out of their private homes
just to warehouse the land for future development."

The Kelo case was an opportunity for the justices to put limits on
the use of eminent domain - and to look at how the power had been
abused since cities had begun using expanded powers of eminent domain
half a century ago. As Clarence Thomas pointed out in his dissenting
opinion in Kelo, "In cities across the country, urban renewal came to
be known as 'Negro removal.' "

Activists of all political stripes have been fighting to preserve
neighborhoods and complaining that eminent domain is unfairly
destroying homes and displacing small businesses to make room for
large retailers and corporations.

If Souter and the other four concurring justices had ever thought
that they could be lose their own homes, they would probably have
paid more attention to the critics of eminent domain. I doubt that
they would have worked so hard to reinterpret the Fifth Amendment.
But as much as I admire Lacasse's plans for the Lost Liberty Hotel,
at this point I think it would be overkill.

However the vote comes out today, Lacasse and his allies have
succeeded in embarrassing Souter, and that's enough. Compagna is
right: a judge should be able to make a bad or unpopular decision
without losing his home. But he does deserve a reality check, and
Souter's neighbors have obliged.

21 comments:

Donkeyhue said...

Your are correct that this is an issue both sides not only can agree and but absolutely should agree on, because if we dont it may be too late as our elected officials on both sides are so deep in the pockets of the lobbyists you havent and you wont hear much about this issue (besides for campaign stumps)

One mans blight is another mans home, and the more we allow Govt to define the undefinable the more we lose our identity as individuals and our ability to control our own destinies.

Good post.

LILY BRANFORD said...

Do you think that the tide turned on 'your' side when the scope of eminent domain made the transition from acquisition for public works and publically held to acquisition by for profits, to be privately held?

Possibly one of the only times I agreed with Thomas. :) KIDDING. As for blight, I don't see why enterprise zones etc. aren't more effective? It really seemed to turn around Harlem, parts of the Bronx, etc. in NY. Many communities have used revitalization funds very effectively. Ultimately this helps the businesses and the residents in a town. Eminent domain is often criticized for favoring non-local big box retail and cheap labor industries, a prime argument against eminent domain for a casino-just as an example.

earl bockenfeld said...

I wonder if anyone knows of any “decent arguments” on the side of legally mandated gentrification… err… i mean eminent domain? Personally, i have trouble coming up with any justifications for the forcible eviction of people from their homes because some rich fatcat somewhere can make more money off their property.

I think the prank highlights the limits to the Court’s Kelo ruling. Kelo involved a large plan for about ninety separately owned plots of land, the area in Kelo is economically depressed, and the opinion and concurrence emphasized there was no improper motive.

This Prank would involve a single plot of land in an place that is not economically depressed, and the project would be pursued as a means to punish the owner, clearly an improper motive.

Anyway this prank is very amusing. I hope that Souter gets it.

That’s KARMA, Your Honor.

*Smirk.*

tp said...

Its more the statement of it obviously, but still it would be funny to pull off. I can't think of a real case for eminent domain, except maybe in cases where the community is in such a state of drugs or decline or disrepair that to fix it would not matter if there were no jobs to be had? Even thats a tough sell. Highways or something are different. A home of your own is american like apple pie! it seems weird they would not see that.

Once the area gets taken over the locals can no longer afford it, the 'gentrification' is underway. Look at NYC how there were places you would never live in but now are hard to afford!

Donkeyhue said...

You forget Im a hilljack first and 4most, just because I golf in private club,doesnt make me a lobbyist.
This is the single biggest invasion of civil liberty in this country since ...the last time.

Write, meet and ask your local elected official his stance on this....they wont know how to answer. Maybe theyll say they need to read up on it or theyll say they will defend your land and never allow that to be robbed...

They will all rob you

This is dangerous

GraemeAnfinson said...

ha, funny stuff. payback is a bitch. Business runs everything in this country, so on scotus decision. maybe there is an upside to not owning a single thing

GraemeAnfinson said...

wow, my comment made no sense at all. sometimes i amaze myself when i just type and hit enter.

LILY BRANFORD said...

Hmm, made sense to me. This was an example where the courts let their bias for business taint their ability to see right from wrong. How unusual.

What if the government said "Oh, we have a deficit, we are going to take 50% of people's 401K for the "public good" but don't worry- we'll pay it back with interest and besides, its just sitting there."

That would not be all THAT different.

These blighted areas- why not buy directly? Let the holdouts extort their millions!

a rose is a rose said...

all i know is people in MY state are going to get screwed (AGAIN)

Rhino-itall said...

What bothers me most about this is the fact that our elected officials can over rule the supreme court, but won't. They could save the homes of their constituents but they don't. Obviously it's beneficial to them, because of tax revenue, or campaign contributions or both. So they allow the courts to rule instead.

"the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
A. Lincoln (first inaug. address)

rev. billy bob gisher ©2005 said...

eminent domain way back in the stone age was used mainly for public works projects. i am not so sure i like donald trump grabbing my property for his casino. a road widening OK.


alternate sign-on name:

"the penis formally known as geraldo."

The Definitive Rectum Of Charles Grodin said...

Don't know what that Gisher means...

RichM said...

Rhino, that is a damn good quote. And I have to agree with the Rev. Our elected reps have the power to set things right. In this capitalist society of ours if the city wants to take over private property make them an offer they just cannot refuse. It there is not enough money in the project to be undertaken to do that then why bother?

Left of Center said...

I think that if a corporation is involved then the individuals rights should supercede it. I do see the need to occasionaly use individuals property for public works, however the individual should have honest appeal, and compensation.

Fosco said...

One question about Rhino's point: you have repeatedly said that you think the legislators should draft the laws and the supreme court should interpret laws, right? That a judge that interprets law in a way that goes beyond the scope of its language is an "activist judge". Well maybe you could explain how an activist Legislature works? Is there such a thing? Your thinking limits the power of the judicial branch but not the legislative?

You don't see their positions on ED, however shitassed,as an interpretation of law? If elected officials undermine the decision of SCOTUS, you would not see that as a reverse of what you call an activist judge? The specific standards for ED should be decided by the states anyway. Enough of this detached elitist crapObviously there are times when it applies to federal infrastructure like roads or bridges, but that is already established. Done. Settled! They should not be screwing around with this issue anyway. It is settled, like desegregation. They should not even get into this stuff.

Taking homes and neighborhoods is a different matter- and it is not necessary that every state agree on this, the people in the states should express their views and laws should be written on a state level accordingly.

The feds should only be involved if there is a compelling federal reason to do so. Land use is getting too bogged down with settling land claims with enterprise licensing, shafty deals, selling out communities. The problem is not a judiciary that has gone too far or leg. that don't go far enough, the problem is that not every thing needs to be federalized. When you federalize, you will never have effective government because the needs of fucking Alaska have nothing to do with the needs of Florida.

Thats when government went to shit, when they castrated the states, then tied their hands and forced them to perform to their commands like they are doling out Scooby Snacks.

Rhino-itall said...

fosco, the judiciary was always supposed to be the least powerful. An activist legislature can be ousted with a vote, the activist judge can not.

LILY BRANFORD said...

I guess we buy the idea that the lifetime appointment leads to impartiality but, it sure as hell is political before the appointment. I have misgivings about lifetime ANYTHING.

But, what do I know.

I am ok with admitting that I don't know it all. And despite that it isn't easy, I put the fact that I don't know out there and try to really consider the feedback I get, it takes time to respond and that time is appreciated.

Eli Blake said...

Lily,

I have to agree with what you said about Thomas et al, and I'm NOT kidding. I wonder why 'liberal' justices (i.e. Souter, Stevens, etc.) would have voted as they did. This should have been a 9-0 vote against the abuse of eminent domain. There is a clear difference between public and private use, and to blur that is very dangerous.

Unfortunately, the reaction of conservatives (trying to build a hotel where Justice Souter's house is just to get back at him, I mean how constructive is that?) when they could be responding by passing legislation making it harder to do this shows that regardless of how the Supreme Court voted, ordinary conservatives are on board with the business community.

All I know is that if I'm ever driving through New London, Connecticut, I will make sure to wait and buy gas in the next town.

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