The Magazine

Evicting David Souter

If the justice is so fond of eminent domain, say protesters, let's seize his ancestral property and develop a charming bed and breakfast on it.

Feb 13, 2006, Vol. 11, No. 21 • By MATT LABASH
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Weare, New Hampshire

LOGAN DARROW CLEMENTS doesn't seem like the sort of fellow who'd go around stealing the houses of Supreme Court justices. He's mild mannered and laughs easily, often at his own jokes. Physically he resembles a less creepy Ralph Reed: He looks like a 36-year-old altar boy whose mom made him scrub up and dress for dinner. An Ayn Rand devotee, he heads an objectivist discussion group back home in Los Angeles. A zippy evening for the group might entail a field trip to the Stanford Linear Accelerator Center or sitting through a presentation on The Force Minimization Theory of Ethical Taxation.

As an objectivist, Clements is committed to Rand's notion of rational self-interest, self-reliance, and pretty much anything beginning with the prefix "self." Like all objectivists, he profoundly distrusts government, which has a "monopoly on the initiation of force," so he'd only seek public office reluctantly. When conscience (or rational self-interest) called in 2003, he tried to do just that in the California gubernatorial recall election. But there was a whiff of the born-loser libertarian about him. Despite proposing crowd-pleasers such as privatization of all public schools, he finished 131st out of 135 candidates. He was beaten by the likes of Angelyne, a model with no last name who wanted to paint the statehouse hot pink, and Kelly Kimball, a business executive who ran as a member of the ButtMonkey Beer party.

If Clements was a man whose causes had not yet found full employment for his talents, that all changed on June 23, 2005, the day the U.S. Supreme Court issued its Kelo v. City of New London, Conn. decision. It was also the day that Clements, in response to that decision, resolved to swipe the house of Supreme Court Justice David Souter, and put up in its place the Lost Liberty Hotel.

The Kelo decision might well be the most important in the history of eminent domain, a term that can cause instant drowsiness among the easily bored. Though "eminent domain" sounds like a badly named subdivision, it is not as euphemistic as it seems. It derives from the Latin dominium eminens, meaning "supreme lordship," giving its victims an unsubtle hint as to how they'll fare if eminent domain is used against them. If the government asks you to sell your property at its price and you decline, you can be forcibly removed. It's the ultimate buyer's market.

Eminent domain's dictionary definition is "the right of a government to appropriate private property for public use, usually with compensation to the owner." That must be from an old dictionary, since "public use," after decades of constitutional erosion, has been transformed into "public purpose."

In practice, a "public purpose" is anything that land-grabbing cities and the private developers they're in bed with want. Throughout the country, cities now continually seize properties for every reason from economic development to elimination of "blight." As Dana Berliner writes in her book Public Power, Private Gain, "blight" these days can include "too-small side yards, 'diverse ownership' (different people own properties next to each other), 'inadequate planning,' and lack of a two-car attached garage."

Historically, the "public use" requirement meant that a local government could order businesses or homeowners to vacate their property for schools, highways, and other genuinely public works. But increasingly, people are asked to fork over their land to private interests, from chain restaurants to condo towers to yacht clubs, that local governments know will bring in higher tax revenues.

While this might sound like a perfectly acceptable tactic to an urban planner in Leningrad, circa 1925, Americans tend to look less kindly on it. Polls show up to 93 percent reject eminent domain for private economic gain. But national outrage might very well be muted, since for every victim of eminent domain abuse, there are often two beneficiaries: the local municipality and the private business on the receiving end of the wealth they've redistributed. Not for nothing can anti-eminent domain types recite the plaint of George Bernard Shaw, "A government which robs Peter to pay Paul can always count on the support of Paul."

The Kelo case involved a group of homeowners in New London, Connecticut, who held out against the city and its private development corporation. The latter wished to demolish a working-class neighborhood in order to erect such public necessities as a "small urban village" and a parking lot for Pfizer employees.