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.
John Tierney David Souter Kelo SOTUS Eminent domain Tierney
