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Non-poetic injustice

Many of you have probably heard by now that in the wake of the recent Kelo v. New London case, some opponents of the decision are trying to us eminent domain to force Justice Souter to turn over his house. Captain Ed:
Not long ago, after Supreme Court Justice David Souter supported the seizure of private property in the Kelo decision, a collection of activists decided to take Souter at his word and exercise eminent domain on his house in Weare, New Hampshire in order to build a hotel. Freestar Media wanted to bring the foolishness of Kelo to Souter's doorstep -- literally. And despite Souter's popularity among his fellow New Hampshire citizens, they have surprisingly looked at Freestar's efforts with understanding, if not outright support...

The notion of poetic justice rings true among New Hampshire citizens, apparently, which I admit surprises me. I expected this effort, which I called the Mark Twain option, to make its point and fade into obscurity. Granite State citizens instead have expanded it into a second proposal, one that sounds as if Weare residents have decided to make Souter's participation in the diminution of private property into very personal consequences to him and his family. I believe that the Freestar proposal has a better chance of success under Kelo as the commercial value matches better with the details of that case, but Weare shows that it has an open mind about using Kelo for any of several purposes with what may soon be the former property of David Souter.
The problem with all this is that while the use of eminent domain in the Kelo case was not unconstitutional, this use of eminent domain surely would be. This is not the seizure and transfer of private property for the purpose of economic development for the community as a whole; rather, it is an attempt to get revenge for a decision these people didn't agree with.

Take a look at the decision itself. This is Stevens writing:
...the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. ... The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City's development plan was not adopted "to benefit a particular class of identifiable individuals."
This makes it clear that the public use of the property cannot be a mere pretext for the taking. Justice Kennedy, concurring, makes a similar point:
This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it is "rationally related to a conceivable public purpose." ... The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.

A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications.
Now, the decision doesn't explicitly address a situation where property was being seized just for spite under the pretext of public use. What it does make clear, though, is that just because genuine public use is a legitimate basis for the use of eminent domain, it does not follow that any invocation of eminent domain is legitimate so long as lip service is paid to public use. Deliberately targeting a specific individual like this is not permitted by the Kelo decision (and also would probably be a violation of Souter's right to (substantive) due process).

What the Kelo decision (the full text of which can be found here) permits is the transferring of property from one private entity to another if it is done for a purpose that legitimately falls under the rubric of public use. Poetic justice is not such a purpose.

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