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Thursday, June 30, 2005

Just Desserts?

I'm sure that I don't always succeed, but unlike certain characters in Washington, I try to be somewhat consistent in my opinions. On Tuesday, I wrote about how Flint has decayed since being basically abandoned by GM, and then shortly after that I wrote about the threat to Michigan's water from economic development. I realized that there was a bit of an inconsistency there, so I added these sentences to my Flint post:
I don't know the answer--auto companies have a bleak future which would have depressed Flint eventually anyway. But our corrupt system allows inhuman corporations to come and go as they please, frequently being bribed to move their operations, without regard for the human or environmental damage they leave in their wake.
In reading about the seemingly universally despised Supreme Court ruling on eminent domain, I started to realize that it fit into a larger picture--the public good versus private property rights. Three years ago, I applauded the Supremes for determining that the "public good," in terms of zoning and environmental protection, took precedence over property rights in a case involving Lake Tahoe. The split on that vote was similar to last week's eminent domain ruling: "Liberals" Stevens, Souter, Bader Ginsberg and Breyer joined by swing justices Kennedy and O'Connor voted for "public" over "private" with Scalia, Thomas and Rehnquist taking the private side; in last week's ruling, only O'Connor switched sides--that is, I agreed with her in both decisions.

The whole issue is based on the interpretation of the "taking" clause of the fifth amendment: "nor shall private property be taken for public use, without just compensation." In the Tahoe case, the six-member majority determined that zoning and environmental restrictions did not constitute "taking," so they allowed the restrictions to stand with requiring the local government to compensate property owners. In last week's ruling, the five-member majority determined that economic development, even by private developers, is a legitimate "public" use. No question about "taking" here--houses and land, not just certain uses, get taken, and forever.

It seems that eight judges see the issue completely in black-and-white terms: Scalia, Thomas and Rehnquist believe that if you own property you should be able to do whatever you want with it, and no government entity should be able to take it, or even restrict your use of it a little, for the "public good." Stevens, Souter, Bader Ginsberg, Breyer and Kennedy seem to believe that the "public good" takes precedence over property rights in all cases. Only Justice Sandra Day O'Connor seems to recognize the absurdity of both positions and to be willing to look for the proper place in the middle to draw the line.

Anyway, that's all preamble to this interesting story out of New Hampshire:
Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

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.