Eric Rasmusen’s Weblog

This press release suggests taking Judge Souter’s house by force to make it into a hotel. I think the Kelo decision would actually allow this, as I’ll explain later. Here are details:

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter’s home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called “The Lost Liberty Hotel” will feature the “Just Desserts Café” and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon’s Bible each guest will receive a free copy of Ayn Rand’s novel “Atlas Shrugged.”

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans .

“This is not a prank” said Clements, “The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development.”

Randy Barnett posted on this and then said:

I had posted this link facetiously but see that some commentors, both pro and con, are taking it more seriously. Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A.

There are two issues here. (1) Does the hotel idea violate the holding in Kelo? (2) Is it a bad idea to retaliate against judges who make bad decisions?

(1) Does the hotel idea violate the holding in Kelo?

No, I think it does not. Strictly speaking, Kelo says that the primary intent of a taking from A to sell to B cannot be to benefit B, though it may incidentally benefit B substantially. An extension of Kelo might be that the primary intent cannot be to hurt B either, though it may incidentally harm B. Let’s accept that extension. Kelo still would allow the hotel. Here’s why.

Kelo says that the courts will prevent a city from taking property from Souter and selling or giving it to Clements only if the only real reason for the taking is to help Clements (or, in our extension, to hurt Souter). It is irrelevant whether the taking hurts Souter or helps Clements, or what motivation Clements might have. It is okay if the developer has no public interest in mind. He can be in it purely for profit– or, in this case, purely for malice.

The city, however, must have some public purpose in mind, though that purpose can be as slender as to increase the value of the property, create jobs, or whatever. The Kelo holding said that the courts should not inquire into whether this purpose was reasonable or not, or whether, for example, the value of the property actually *would* increase in the way the city claims it will. The hotel on Souter’s property clearly passes this easy test– the claim is that the hotel would increase the value of the property, and maybe it would.

Even if the city can claim some public purpose, though, Kelo says that the public purpose cannot be a mere sham, designed to cover up a primary intent to make Clements rich (or, in our extension, to hurt Souter). On the other hand, it is okay if the taking does make Clements rich, and if that is Clements intent, and if the city officials are political allies of Clements. Kelo must be saying that there can be no rational purpose in the taking *except* to make Clements rich (or to hurt Souter, in our extension). I interpret Kelo as saying that it is okay if the city does have mixed motives– the public purpose *and* to hurt Souter– because if Kelo isn’t saying that, then it is inviting a factual inquiry into whether in takings such as in New London the city officials are happy to see their developer friends benefit, which they surely are. The Kelo case was not remanded to the trial court for a factual inquiry of that kind.

This is where the Kelo decision really is as silly and unpredictable as the Supreme Court’s Ten Commandments cases of this week. As O’Connor says, Kennedy, who stressed this disguised purpose caveat, didn’t provide a test of which takings would be blocked by the courts.

At any rate, the Souter Hotel is genuinely okay as far as the mere sham test goes. The hotel would make money for the town. As the developer forthrightly says, it would do precisely *because* it would be on Souter’s property and it would appeal to libertarians and tourists,– even to pro-Souter lawyer tourists who would drive up to see it and grumble about how evil conservatives are, having a snack at a local restaurant afterwards and thus enriching the local economy. A neutral town government might well favor such a hotel– and who is to look into their hearts? In fact, as I discussed above, even if they admit that they would like hurting Souter, so long as they add, “But the important reason for this hotel is to benefit the city,” they are okay.

(2) Is it a bad idea to retaliate against judges who make bad decisions?

No, not at all. Professor Barnett would not punish a judge for “the good faith exercise of his duty”, but that’s meaningless. No judge is going to say something like “I ruled this way not because that is what the Constitution says but because I like big government,” or, to take a very common case, “I ruled this way not because that is what the Constitution says but because I personally am against the death penalty.” High court judges violate their oaths of office that way all the time, and they ought to be punished for it. Good intentions don’t help. Hitler, Stalin, and Bin Laden all had good intentions, I’m sure (Saddam Hussein probably did not–I’m not saying everybody does,but ideologues have unselfish as well as selfish motives). Souter surely thinks that America is a better place because the Supreme Court has made rulings that are, in his view, good public policy, and that they violate the Constitution is unimportant to him. He does not put it that way, of course, and he and his fellow judges are cautious in their usurpation of power. They are cautious, however, only because they fear the retaliation that Barnett wants to avoid. If they were sure nobody would retaliate by impeaching them, armed resistance, court-packing, and so forth, they would be more honest and more aggressive. Thus, if we go after Souter’s house now, we may induce the Court to retreat a bit, and preserve a few freedoms that we will otherwise lose.

This entry was posted on Tuesday, June 28th, 2005 at 7:01 pm and is filed under Law, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.