# Eminent domain and payback for Souter **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2006, 6:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282 "2006-01-23T18:57:35Z")\ **Posts on this page:** 16\ **Page:** 6
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 4:17pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/101 "2006-01-27T16:17:27Z")
> [@Magiver](#): > > I understand the court’s reluctance to codify “public use”. That’s a legislative function. Congress may eventually act on it. However, when finding for a decision that involves Constitutional law they not only didn’t act in their capacity, they redefined the law downward to a local level instead of redirecting it back to Congress. I’m afraid I don’t understand what you’re saying. If the U.S. Constitution does not prohibit a government body from doing something, then it doesn’t matter whether it’s the Congress or a state legislature. There’s no such concept in American constitutional law as “redefin[ing] the law downward to a local level instead of redirecting it back to Congress.” Congress had nothing to do with it. It was a state law that was in question. It was a state law that the Supreme Court ruled on. There is no option for the court to say “Well, we’re not sure whether the U.S. Constitution allows a state legislature to do this; therefore, we will ask Congress to decide.” That’s not how it works. Either the state law is constitutional or it’s not. In any case, you keep playing tricks with the discussion. Your initial argument was along the lines of: _The Supreme Court did something outrageously out of line, violating all precedent, and overturning the basics of constitutional law; the decision was dishonest and revolutionary and completely lacking in any legitimate jurisprudence; and that’s why we’re justified in dicking Souter around with any means we find available._ Now it seems that you’re arguing: _I can make a case why the Supreme Court got this decision wrong, based on the arguments put forth in the dissenting opinions._ So which is it? What does it take to justify trying to seize Souter’s house? Is it any level of annoyance? What if he had failed to curb his dog while walking across your property or cut you off in traffic? I don’t seriously expect you to answer those questions, because what I’m getting at is that you’re trying to make an argument for _what is a legitimate basis for seeking revenge against a government official who made a decision you disagreed with_? And that’s an uphill battle. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 4:29pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/102 "2006-01-27T16:29:24Z")
> [@Polycarp](#): > > My long post last night seems to have turned into hamster chow. > > In sum, though: SCOTUS has **always** declined to incorporate the Bill of Rights _carte blanche_ into the Fourteenth, accepting principles selected from it on a case-by-case basis. In a couple of cases: jury trial and grand jury felony indictment, it has flat-out refused to consider them binding on the states, so long as the equivalent state process preserves what the Supremes consider “due process of law,” the “fundamental right” which those two Bill of Rights provisions make specific in Federal court. > > That you may not be deprived of property except by due process of law is a right guaranteed as against both Federal and state action. That you must receive just compensation and that the land must be taken for public use are Fifth Amendment rights which are guaranteed against Federal action only. Like you, I would have thought that the guarantees would be incorporated in the Fourteenth as against state action as well. But SCOTUS didn’t so conclude. > > So you may rest assured that the Feds. can’t take your house for a Haliburton project. But that doesn’t mean the state politicos can’t take it for whatever happens to warm the cockles of their hearts. No, you’re point didn’t make it to the hamster cage. I get it. You’re arguing **what is** , based on what the SC has done (or undone) over the last 100 years. I’m arguing on behalf of the first 100 years of property rights as originally conveyed in the Constitution. It was singled out for a reason, even it was not codified to the Supreme Court’s satisfaction. When I look through all the prior decisions they seem more focused on the ability to take property away and less on the right to own it. The Kelo decision torpedoed personal property rights on a Federal level. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 4:37pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/103 "2006-01-27T16:37:17Z")
> [@Magiver](#): > > When I look through all the prior decisions they seem more focused on the ability to take property away and less on the right to own it. Which is exactly what the Fifth Amendment seems focused on: > [@](#): > > … nor shall private property be taken for public use, without just compensation. This statement is focused on the restriction (just compensation) on the government’s power to take property for public use. It does not focus on a right to own property. Constitutional law seeks to interpret the meaning of the Constitution, as it is written. Note, actually, that the Constitution itself does not create any explicit right to _own_ property. Such a right must be inferred. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 4:38pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/104 "2006-01-27T16:38:23Z")
> [@Magiver](#): > > The Kelo decision torpedoed personal property rights on a Federal level. Do you realise that this is hyperbole or do you seriously mean it? ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 5:18pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/105 "2006-01-27T17:18:50Z")
> [@acsenray](#): > > I’m afraid I don’t understand what you’re saying. If the U.S. Constitution does not prohibit a government body from doing something, then it doesn’t matter whether it’s the Congress or a state legislature. > > There’s no such concept in American constitutional law as “redefin[ing] the law downward to a local level instead of redirecting it back to Congress.” Based on the SC’s remarks I disagree. Per Justice Stevens remarks: “that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature”. (Wikapedia). Per Justice O’conners remarks:" She argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively [deletes] the words ‘for public use’ from the Takings Clause of the Fifth Amendment”.(Wikapedia) > [@acsenray](#): > > Congress had nothing to do with it. It was a state law that was in question. It was a state law that the Supreme Court ruled on. There is no option for the court to say “Well, we’re not sure whether the U.S. Constitution allows a state legislature to do this; therefore, we will ask Congress to decide.” That’s not how it works. Either the state law is constitutional or it’s not. Yes it was a state law in question, but only as far as it contradicted Federal law. Which is what the Supreme Court discussed in it’s ruling. > [@acsenray](#): > > In any case, you keep playing tricks with the discussion. > > Your initial argument was along the lines of: _The Supreme Court did something outrageously out of line, violating all precedent, and overturning the basics of constitutional law; the decision was dishonest and revolutionary and completely lacking in any legitimate jurisprudence; and that’s why we’re justified in dicking Souter around with any means we find available._ ``` Yes. ``` > [@acsenray](#): > > Now it seems that you’re arguing: _I can make a case why the Supreme Court got this decision wrong, based on the arguments put forth in the dissenting opinions._ ``` Yes. ``` > [@acsenray](#): > > So which is it? What does it take to justify trying to seize Souter’s house? Is it any level of annoyance? What if he had failed to curb his dog while walking across your property or cut you off in traffic? Actually, someone is deliberately curbing his or her dog in my fenced in yard. When I find that person I will return the offending material to it’s original owner. If he cut me off in traffic I’d either beep my horn or point out his inadequacies with the appropriate finger. > [@acsenray](#): > > I don’t seriously expect you to answer those questions, because what I’m getting at is that you’re trying to make an argument for _what is a legitimate basis for seeking revenge against a government official who made a decision you disagreed with_? And that’s an uphill battle. Revenge is not the word I had in mind. Accountability is more in line with what I’m thinking. He has diluted the right to own property. I cannot remove him from office or address him as I would my elected officials. The only thing left is to subject him to his own folly. If it bothers you that someone is willing to take someone’s house for their own personal gain then maybe it will bother Souter. I learned a long time ago to stand up for myself. If someone brings harm to me accidentally I feel some civic duty to forgive him or her upon redress. If someone deliberately takes something from me then I would seek redress and punishment. I guess it depends on how you view the ruling as to whether you’ve lost some of your rights. Something else I learned a long time ago is that the number of laws tend to increase over time. Most of those laws define and limit your options in life. It’s a cumulative effect that stops only when people stand up for what they believe in. That’s hard to do when faced with a bad decision from the Supreme Court. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 5:23pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/106 "2006-01-27T17:23:02Z")
> [@acsenray](#): > > Do you realise that this is hyperbole or do you seriously mean it? I think Kilo would disagree with you. As well as the dessenting SC Judges. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 5:49pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/107 "2006-01-27T17:49:52Z")
[QUOTE=Magiver] > [@](#): > > Originally Posted by acsenray > I’m afraid I don’t understand what you’re saying. If the U.S. Constitution does not prohibit a government body from doing something, then it doesn’t matter whether it’s the Congress or a state legislature. > > There’s no such concept in American constitutional law as “redefin[ing] the law downward to a local level instead of redirecting it back to Congress.” Based on the SC’s remarks I disagree. Per Justice Stevens remarks: “that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature”. (Wikapedia). Per Justice O’conners remarks:" She argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively [deletes] the words ‘for public use’ from the Takings Clause of the Fifth Amendment”.(Wikapedia) These statements do not form a basis for your disagreeement with my statement. > [@](#): > > Yes it was a state law in question, but only as far as it contradicted Federal law. Which is what the Supreme Court discussed in it’s ruling. This portion of your post is non-sensical. Please restate. > [@](#): > > Yes. It has been amply demonstrated that the court’s decision was based on more than a century of precedent. That in itself flatly contradicts any conclusion that what they’ve done is “outrageous.” Fine, you _disagree_ with them. I might even disagree with the decision. I haven’t decided yet. However, the evidence is clear that they weren’t “legislating from the bench” or any other such right-wing scare-words. Your obstinance in this position discredits any claim you have to reasoned debate. > [@](#): > > Yes. So the existence of any rational basis for disagreeing with a judge’s decision is to you a valid basis to use any means to interfere with his personal life? > [@](#): > > Revenge is not the word I had in mind. Accountability is more in line with what I’m thinking. Under what definition of “accountability” to you seek to take a government official’s house based merely on your disagreement over a point of law? > [@](#): > > I learned a long time ago to stand up for myself. If someone brings harm to me accidentally I feel some civic duty to forgive him or her upon redress. If someone deliberately takes something from me then I would seek redress and punishment. I see. So a disagreement over the scope of government power merits not an attempt to change the government to reconsider, but instead _punishment_. > [@](#): > > Something else I learned a long time ago is that the number of laws tend to increase over time. Most of those laws define and limit your options in life. It’s a cumulative effect that stops only when people stand up for what they believe in. Something else I learned a long time ago is that different people can legitimately disagree on questions on law and government and that conclusions that you disagree with might still be based on valid doctrinal development. And other thing I learned is that the American democratic system allows you to petition for your point of view and to elect people who won’t do what you don’t want them to do even if the U.S. Constitution would allow it. And that’s what “standing up for what one believes in” means in our system, not thuggery. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 28, 2006, 12:31am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/108 "2006-01-28T00:31:33Z")
> [@acsenray](#): > > Something else I learned a long time ago is that different people can legitimately disagree on questions on law and government and that conclusions that you disagree with might still be based on valid doctrinal development. And other thing I learned is that the American democratic system allows you to petition for your point of view and to elect people who won’t do what you don’t want them to do even if the U.S. Constitution would allow it. And that’s what “standing up for what one believes in” means in our system, not thuggery. Appropriately stated. It still doesn’t address Souter’s actions as a member of the Supreme Court. He is not entitled to no-fault voting insurance. If he feels wronged by the action (and therefore his decision) he is free to make his case to the public at large. He’ll have my sympathy and support. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [February 6, 2006, 6:59am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/109 "2006-02-06T06:59:47Z")
In case anyone’s interested, [Souter gets to keep his house](http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020400853.html). ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [February 6, 2006, 7:11am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/110 "2006-02-06T07:11:46Z")
From the article **mhendo** linked to: > [@](#): > > But voters deciding which issues should go on the town’s March ballot replaced the group’s proposal with a call to strengthen New Hampshire’s law on eminent domain. Huh. A sensible, non-vindictive approach that may actually solve the underlying problem. Astounding. ---
**Author:** ![yo\_no\_se](https://avatars.discourse-cdn.com/v4/letter/y/b487fb/32.png) [@yo\_no\_se](https://boards.straightdope.com/u/yo_no_se)\ **Post date:** [February 6, 2006, 10:27pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/111 "2006-02-06T22:27:34Z")
Things are coming to pass as they should… [Recent News](https://http://www.foxnews.com/story/0,2933,183976,00.html) ---
**Author:** ![yo\_no\_se](https://avatars.discourse-cdn.com/v4/letter/y/b487fb/32.png) [@yo\_no\_se](https://boards.straightdope.com/u/yo_no_se)\ **Post date:** [February 6, 2006, 10:29pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/112 "2006-02-06T22:29:42Z")
[QUOTE=yo no se] Things are coming to pass as they should… try [this.](http://www.foxnews.com/story/0,2933,183976,00.html) ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [February 8, 2006, 3:23am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/113 "2006-02-08T03:23:38Z")
> [@Orbifold](#): > > From the article **mhendo** linked to: > > Huh. A sensible, non-vindictive approach that may actually solve the underlying problem. Astounding. I’m a cynic here. I wonder if this vote would have ever taken place, if there hadn’t been a “vindictive” approach first - the attempted taking of Souter’s house. As long as it was just some unknown nobody, it was a non-issue. But when someone famous is the target, suddenly there is a vote and the eminent domain law gets changed. The idea that it took the targeting of a Supreme Court judge (one who voted in favor of what amounts to private seizure) to get something done stinks. Again, so long as it was only the little fish getting eaten, nobody cared. Double standard maybe? ---
**Author:** ![saoirse](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@saoirse](https://boards.straightdope.com/u/saoirse)\ **Post date:** [February 8, 2006, 3:00pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/114 "2006-02-08T15:00:20Z")
> [@SteveG1](#): > > I’m a cynic here. I wonder if this vote would have ever taken place, if there hadn’t been a “vindictive” approach first - the attempted taking of Souter’s house. As long as it was just some unknown nobody, it was a non-issue. But when someone famous is the target, suddenly there is a vote and the eminent domain law gets changed. The idea that it took the targeting of a Supreme Court judge (one who voted in favor of what amounts to private seizure) to get something done stinks. Again, so long as it was only the little fish getting eaten, nobody cared. Double standard maybe? By “Double Standard,” do you mean, “No one seizes some poor schlub’s dairy farm to teach him a lesson?” ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [February 8, 2006, 4:26pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/115 "2006-02-08T16:26:52Z")
> [@SteveG1](#): > > I’m a cynic here. I wonder if this vote would have ever taken place, if there hadn’t been a “vindictive” approach first - the attempted taking of Souter’s house. As long as it was just some unknown nobody, it was a non-issue. But when someone famous is the target, suddenly there is a vote and the eminent domain law gets changed. The idea that it took the targeting of a Supreme Court judge (one who voted in favor of what amounts to private seizure) to get something done stinks. Again, so long as it was only the little fish getting eaten, nobody cared. Double standard maybe? Don’t give this temper-tantrum stunt in New Hampshire more credit than it deserves. From [this link](http://legisweb.state.wy.us/PubResearch/2005/05FS021.pdf): > [@](#): > > As of the first week of August, NCSL reports that 11 states had officially introduced legislation since the Kelo v. New London decision was released. There was enough outrage over the Supreme Court decision and enough concern for the “little fish” to provoke a legislative response in those 11 states. Unless you think that state legislatures in Alabama, California, Delaware, Illinois, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, and Texas were all motivated by nothing more than a burning desire to save Justice Souter’s home in New Hampshire. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [February 9, 2006, 1:56am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/116 "2006-02-09T01:56:39Z")
I was “locked on” to New Hampshire, since that was where this vote took place. [Previous page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=5)