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.
The only provisions in NH law that could possibly apply are:
and
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).
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
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.
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.
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.)
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?
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.
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.
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.
Where do you draw the line at eminent domain?
So we get back to "activist" being reduced to a more-grown-up-sounding way of saying "wrong, I disagree!"
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...
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.
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.
NH would have fixed it without these fools.
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.
How funny would it be to lawprofs then?
(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.
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.)
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.
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.
1989, ORIGINALISM: THE LESSER EVIL, Antonin Scalia
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.
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.
"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.
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.
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?
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).
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.
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.
"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
"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
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.