Kelo, Justice Souter's House, and Some Who Should Know Better.

It's funny, but it's grossly inappropriate - the push by Freestar Media (commercial site here) to get the Town of Weare, New Hampshire, to take Justice Souter's home by eminent domain and give it to hotel developers for the Lost Liberty Inn.  Some of the people pushing this (tongue-in-cheek or not) should know better.  Alex Tabarrok, this means you.  Radley Balko, you too.  My former professor, Randy Barnett, got it right on his second take: "Retaliating against a judge for the good faith exercise of his duty is. . .a bad idea."

A bad idea that spits in the face of the independent judiciary and undermines the rule of law.  (And, as Professor Barnett points out, violates Kelo anyway.)  Kelo is a horrible decision that offends me on almost every level, but not as much as retaliating against a Supreme Court Justice.

UPDATE: Professor Volokh thinks that some of the criticism of the Take Souter's Home crowd is over the top, though he agrees we don't want "government agencies to retaliate against government officials by seizing their property."  I think he misses something: retaliating against a judge for construing a law is an especially odious kind of retaliation.  Much worse than a mere retaliation for an official's action, it is an attack on one of the key underpinnings of our society of laws: judicial review, the rule of law itself.  Is it mugging Scalia?  No.  But it isn't less wrong.

Comments

[Tom Hanna]

"good faith". He didn't keep faith with the man who appointed him, the country he was appointed to serve or the Constitution he is supposed to protect. Good faith just isn't at issue.

[carpundit]

I know of nothing that implies a Justice has a duty to the President who appointed him. I know of nothing that suggests Justice Souter failed to serve his country; I doubt he's missed a case in his tenure. As for the constitution, well I agree he got it wrong in Kelo.

If we are enough troubled by the result, we may avail ourselves of the political process to alter Kelo's application. We may not retaliate against the jurists who said "what the law is."

[Mal Snay]

Excellent post, Carpundit. I was very happy to support the developers' revenge against Souter, but then I read your post here and had to admit I was acting a little too much like a Tom Delay cheerleader. You make excellent points.

[jjdaley]

I agree with CP. Judges don't make these types of decisions as private citizens, but as officials interpreting existing law. Personal retaliation is as misguided in principle as it is an offensive affront to the system.

[Dante]

The Old Robed Ones aren't above the laws they dream up. If a carefully developed plan shows that the town might expand its revenue base by razing Souter's home and replacing it with a hotel, a whorehouse, or a stick in the mud, then it should go ahead and do so.

Or maybe it should just be done as outright retaliation, since, as the Old Robed Ones like to say, society evolves.

[Mal Snay]

I think the point is, Dante, that this action be taken against Souter's property is being done simply because of how Souter voted. In other words, if he hadn't ruled that way, this wouldn't be going on. There is no benefit here, this is pure retaliation. And I think what some people are trying to point out is that as despicable and heinous the ruling is, that doesn't make it okay for this type of retaliation (unless, of course, it wasn't being done as retaliation).

Of course, the rich and upper middle class will probably never know the consequences of this decision, as you can bet most developers and local politicians will stick as far as they can from doing this to people with enough money to hire lawyers to fight this injustice.

That's life.

[Dante]

Mal, I do understand the point, but I dispute that there's no benefit. For the town, there could be "public benefit." But to be serious, no, I don't think the town should confiscate the Old Robed One's house just to build a whorehouse or some other tax-base-expanding facility. Nor should it confiscate anybody else's house.

But, remember this, the Old Robed One voted for a ruling that allows towns and cities to confiscate property from owners who have not broken any law, who are not even suspected of having broken any law, nor been involved in any contract dispute or anything else that could call their ownership into question.

The Old Robed Ones ruled that anybody's property can be seized if a carefully developed plan shows there can be "public benefit" by means of an expanded tax base. The Old Robed Ones can't possibly be exempted from that law, can they?

Besides, the developer's stunt was harmless, this is nowhere near Billy B. punishing a judge who won't toe the line. It's just a populistic publicity stunt that could hardly have intimidated the Old Robed One.

[matt]

But what is meant by "retaliation"? It is not a violent retaliation, or at least not any more violent than that authorized by Souter himself.
What you seem to object to is the expressive component; that is, the motivation for trying to develop the hotel is an expression of dislike for the Kelo ruling. But political expressions criticizing public officials are legitimate. So I don't see what the problem is there.

Is there anything in Kelo that requires the developer to have the "proper" motivation? Would you be okay with it if the developer was totally apolitical, or should Souter be completely above the law? And it seems odd to regard greed as an acceptable motivation for a developer, but not protesting the erosion of our freedom.

Additionally, I disagree with the sentiment that public officials should be elevated on a pedastal above the lowly citizen, and never have to experience the pain their decisions cause people. Sure, it may be a form of retaliation, but had the court been more reasonable, it would not have created such an avenue for retaliation in the first place.

[carpundit]

Matt wrote, "Sure, it may be a form of retaliation, but had the court been more reasonable, it would not have created such an avenue for retaliation in teh first place."

I oppose retaliation against Supreme Court Justices for the exercise of their Constitutional duty, no matter how much I disagree with their rulings. The only proper method for responding is political: elect a President to appoint Justices you prefer; lobby legislators to change the laws; or try to amend the Constitution. Leave the Justices alone.

[doinkicarus]

it's not really retaliation in that sense. It's simply an entrepreneur taking advantage of what is now symbolically more valuable land, because of Souter's recent involvement in the erosion of freedom and property rights. As others have said, he can't possibly claim an exemption from the precedent he helped set.
...
During Sherman's famous "March to the Sea" in the civil war, his officers were admonished by some league of women from Charleston or some such city, they asked him, "How can you burn down the houses, the towns and cities? Have you no pity for us?"

Sherman responded "The confederacy started the fire that burns down your houses when they attacked Fort Sumter."

[Steve]

civil dissobedience is not retaliation. Souter made a very poor decision in this case, and now his actions will be felt by him. They are trying to prove the point to him that just because its not his land being taken does not mean it is right. Now that his home will be taken, he might have second thoughts. If not, at least we'll get a really nice hotel!

[carpundit]

The proposal -serious or not- is direct retaliation against a Justice for a particular vote. Any claim otherwise is pure disingenousness.

Civil disobedience has nothing to do with it.

[wavemaker]

The suggestion that the Kelo decision could even remotely support the type of taking in this amusing example is reductio ad absurdum. It is a gross overstatement of the contextual meaning of the decision -- but it does make for some entertaining blogging.

Someone wants to make a principled point -- but this example really is bombast.

[navyvet]

I have seen comments on here, especially from wave maker, that this is not the meaning of the decision. For a quick peak at other people put in harms way by this "HOME INVASION" decision look at the Saha Family's plight (www.saveourfarm.com) Take a farm put in a golf course.
Which is more reductio ad absurdum , Souters house or the Saha's Farm?
Seems to me people have forgotten why the Revolutionary War was waged. "For the people" not ffor greedy land developers with politicians in their pocket.
I am supposed to put my faith in a legal system that has allowed this to happen, to let influenced politicians decide my right to own land? Watch out the fox is in the hen house!
By the way it was stated that the loss of a military installtion deeply affected the New London finances. Funny how that works, Federal Goverment takes a Military Institution then the City takes private homes.
As for Souter failing to serve his country, the decision speaks for itself. Justices are our last hope between big business greed and wealthy politicians looking to add to their coffier.
Hmmm maybe we should take wavemakers house and build a Walmart!

[Gene Callahan]

Why in the world shouldn't Souter be retaliated against? He is a criminal member of a crime gang engaged in robbery. The fact that he followed the rules set up by the gang itself is so far from an excuse that... well, I don't know what to say.

[John David Galt]

The point of the campaign isn't retaliation, it's anti-hypocrisy. Souter has enacted a retroactive law that says theft of one's home is completely OK. So what would be his beef?

Thanks for the info. Here are some additional resource where you cand download the plans. as well.

Great articles & Nice a site….

[louis vuitton outlet]

If only the 350 cities and towns could find the same political will. We can break the back of the police unions here, if people don't chicken out.

[MBT Shoes Uk]

Listen to music on the go with the built-in music player plus if you need to store.

[More is here]

Wow, interesting! Has anyone else come across the same thing compared to this? I am curious where to find more responses on this matter…

[DaRev289]

If David Souter in "good faith" made his decision in Kelo to permit takings for development by private parties with the intent to increase the level of economic activity and "hence" qualify as a "public use", then he in "good faith" would have no expectation whatsoever that his own property would be immune from the effects of such a decision. The proposed action is petty, but so was Kelo. And since when would it be unjust for him to reap what he sowed?

[Free Poker]

Moreover, you never cast a negative vibe, which is great in the fact of obvious competition among brands. Hopefully after tomorrow’s big announcement you can relax for a little while at least until the rumor mill winds up to full speed again.

[Poker Bonus]

Keep up the good work, I’m looking forward – which is certainly an understatement – to Wednesday and what next DDay will bring on FF.

[Bonus Without Deposit]

This is really helpful tutorial! Thank you so much and please, keep good work!