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July 25, 2005

Why Taking Souter's Home is Illegal

A lot of folks pissed at the Kelo economic development "takings" decision have taken some glee in the proposal by one New Hamphire resident to take Justice David Souter's home by eminent domain as punishment for his decision.

Except that such an eminent domain proceeding would no doubt be ruled unconstitutional, which is one reason why a lot of anger over the decision is overblown.

Despite propaganda otherwise, the Kelo case was not about transferring property from one owner to another, but from many owners to an economic development corporation run by the city as part of a comprehensive planning process. As Justice Stevens noted, "a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case," so even in the abstract Kelo wouldn't necessarily justify the proposal to seize Souter's home and give it to someone else.

But even more importantly, as Justice Kennedy said in concurrence, eminent domain that "is intended to favor a particular private party" must be struck down just as any government action "intended to injure a particular class of private parties" is invalid.

People may want to read Kelo as doing more than it says, but what it says is pretty simple. If eminent domain is used by a city and it supplies a reasonable argument for how it serves the public interest AND no proof of favoritism or political retaliation is proven, the the courts should defer to the political decisions of local governments.

So exactly the horrors people imagine -- churches being grabbed on purpose to transfer their property to tax-paying entitites, political paybacks, etc. -- wouldn't hold up under the Kelo standards. And hopefully, any politicians who tries it will lose their jobs at the next election, long before the case winds its way to the Supreme Court.

Posted by Nathan at July 25, 2005 11:29 AM