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.