Stay low key on Kelo?

I’m going to pick a fight with Nikki here. In reference to the Free Stater led pledge to stay in the Lost Liberty Hotel built on David Souter’s property, which the developer would seize using the powers of eminent domain, Nikki says:

…for those lacking a sense of humor, i should say that as a species in general, flying hedgehogs usually do not support eminent domain, for revenge or otherwise. it’s funny to mention, but certainly not to do. the law is a serious institution and shouldn’t be used to punish someone just because his or her interpretation is unpopular.

I signed the pledge and admit that when I did I felt a little twinge of doubt that I was doing the right thing. “We’re better than this,” I thought. Using eminent domain, even to prove a point against one of the justices who have validated its abuse, raises the possibility of hypocrisy. But since the hotel doesn’t really stand any chance of getting built and the pledge has been carried out more for the publicity value than for any chance that the hotel would actually be constructed, I added my name to the list and gave the issue no further thought. Now Nikki’s post has made me revisit it.

Let’s start with what’s wrong with the Kelo decision. By weakening “public use” to mean anything that’s done for a “public purpose,” it gives the state practically unrestrained power to seize people’s property and redistribute it to other richer, more politically connected people. This interpretation of eminent domain law is open to the same criticism Rawls offers against utilitarianism: by looking only to the aggregate good, it (and Souter)does not take seriously the distinction between persons. It converts an individual’s property right from a constraint on state power that can only be bypassed under stringent conditions to a title that’s respected at the leisure of the state legislature or city council. Importantly, as O’Connor notes in her dissent:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Despite Kelo’s precedents, I don’t see how Souter et al could have rendered the decision they did if the security of their wealth and power didn’t allow them to feel detached from the risk of having their own homes or businesses capriciously seized. The Court was supposed to be the last resort protector of our individual rights, and I don’t know a better way to make the injustice of their ruling real to them than by supporting this (certain to fail) eminent domain claim. I obviously don’t think that we should be using eminent domain for revenge against just anyone who happens to make us mad, but the government officials who abuse the power of eminent domain or explicitly enable its abuse are in a different category. They are elites who must be kept in check and one of the most basic ways we can do this is to at least make sure that they live or suffer under the same laws the rest of us do.

As a corollary argument, I think it’s in the interest of liberty to treat our government officials with more heartlessness than we would our fellow citizens. So, for instance, I would not normally want a prosecutor to file charges against someone for lighting up a joint of marijuana. But if that someone is the nation’s Drug Czar, I say throw the book at him. When our rulers are busy exercising any excuse for power and eliminating any check upon it, we may have to be willing to take our gloves off on occasion. We’re a long way from tarring and feathering the tax collectors, but perhaps we could use some of that rebellious spirit in the time in which we live. For that reason I sincerely like the creative, pointed stunts some of the Free Staters are coming up with. (On that note, Chad Horne has kept the debate alive on the manicure post.)

If by some miracle the Lost Liberty Hotel does get built, I’ll live up to my pledge without guilt. But I’m open to persuasion otherwise; my thoughts on the matter aren’t entirely clear and I respect Nikki’s notion that we should have more respect for the law than our opponents. Did I sin in signing? I’m curious to know what other people think.

Comments

  1. nikki says:

    hm… food for thought. this is certainly a complicated issue. i also looked at the hotel and contemplated signing, then thought the better of it.

    first, i’m not sure that the likelihood of event should factor into how morally justifiable (or ideologically consistent) it is to promote the act.

    i’m sympathetic to the argument that this is an effective way to scare souter into seeing the light (i.e., our way) on the interpretation of the constitution. but it also frightens me as being the wrong way to look at it – it’s really manipulating warped laws to punish the good faith execution of souter’s job. you say you wouldn’t support ED (or other legal) abuse for everyone, just for ruling elites, but i’m not sure i agree that we should treat government officials differently under law. i think they should be held to the same standards, just as strictly, consistently. as mike munger of duke says, subjective enforcement of laws is a “ticket on the train to tyranny.” (see my post on that can of worms). consistency is also important because justices must feel free to rule with their interpretation, and without fear of persecution.

    in response to your corollary argument, to say it’s “in the interest of liberty to” violate the tenants of liberty smells way too much like the public interest argument that new london was making, that it’s in the interest of everyone to hurt someone.

    that said, i think the free staters usually do great things that are excellent at one essential thing – creating publicity for ridiculous laws. but acting upon plans for the lost liberty hotel is different in that it proposes to harm a nonconsensual party.

    this reflects a few posts at volokh by randy barnett and eugene volokh, incidentally.

    the (in my view) contradictory lost liberty hotel is not surprising, however. this kind of thing makes us feel good. it makes us feel good, just like a liberal who hates poverty feels good by passing minimum wage laws. both are counterproductive, but give us an emotional payback in a world where we have so little control.

  2. Jacob says:

    The argument that responding in this way to members of the judiciary would bias the good faith execution of their duties is the most compelling argument against it. It brings up an interesting question: If official proceedings for an eminent domain taking of Souter’s property had been put in motion before the hearing, would he have had to recuse himself from the case?

  3. David says:

    I blogged briefly about this a while back. I love the chutzpah, and the “Fuck you” aspect of it, and I don’t see why Souter should bear all the burden of the Court’s decision. What about the other justices in the majority?

    I also point out, “But aren’t the libertarians a bit hypocritical opening up a hotel they know will not be financially independent or profitable?”

  4. Kira Zalan says:

    So much for poetic justice. Justice Souter’s influence in his community shielded him from his own ruling. No other rational justification can be found.

    Thankfully, the legislative branch is now busy at work attempting to shield private property rights from the Supreme Court ruling. It seems that the two may have switched roles, with the House defending the Constitution, and the Supreme Court writing new laws.

    I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.

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