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
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Some homeowners not only declined to sell, but also sued. The case came before the Supreme Court after Connecticut's State Supreme Court ruled it was the city's prerogative to seize the homes. The U.S. Supreme Court, too, ended up deferring to the city in a contentious 5-4 split, determining that New London was on the up-and-up about its development project being for "public use," as required by the Constitution.

Justice John Paul Stevens's ambivalent majority opinion in Kelo was laced with caveats. He stressed that states are perfectly free to place tighter restrictions on their own takings powers. Nothing in his opinion, however, revealed his wishy-washiness as plainly as a speech he later gave to the Clark County Bar Association in Las Vegas. He stated that the court's decision was one that yielded "results that I consider unwise," explaining that "the law compelled a result I would have opposed if I were a legislator."

Bosh, said Sandra Day O'Connor in a blistering dissent that was joined by Clarence Thomas, Antonin Scalia, and William Rehnquist. Hardly known as a strict-constructionist hysteric, O'Connor maintained that the majority had effectively gutted the Takings Clause of the Fifth Amendment, which states, "nor shall private property be taken for public use, without just compensation." In the majority's hands, "public use" was now a "virtual nullity." This was like spitting in the eye of James Madison, who took his private property seriously when he wrote, "That alone is a just government which impartially secures to every man, whatever is his own."

Passing this stink bomb back to the states was an "abdication of our responsibility," a "refusal to enforce properly the Federal Constitution." Consequently, wrote O'Connor, "the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Columnist Michael Kinsley put it more snidely: "The court ruled, 5-4, that yuppification is a valid public purpose. . . . Who wouldn't like a few more Starbuckses in town?"

LOGAN DARROW CLEMENTS, as he saw it, was on the side of the angels and the overwhelming majority of the American people. As someone who'd paid attention for years to eminent domain abuses--going so far as to donate to the Institute for Justice, the country's foremost eminent-domain watchdog--he actually chilled champagne in anticipation of the Kelo decision, assuming it would come down the other way. When it didn't, he was not only devastated, but moved to action.

Several years before, Clements had cashed out of his dot-com and magazine startup, which had attempted to link investors seeking innovative ideas with entrepreneurs looking for capital. The sale hadn't made him rich, but it had kept him solvent while he'd learned the video-production trade, taxed his credit cards, and started a new production company, Freestar Media. Through Freestar, he hoped to launch a syndicated show highlighting government authoritarianism and dimwittedness by becoming "an objectivist Michael Moore." Looking for investors, he's already cut a few introductory shorts, such as one in which a monkey throws darts at the stocks charts, picking investments with a higher yield than you'd get from Social Security.

Clements had earlier dabbled with a San Diego eminent domain case, toying with the idea of going after a city council member's home. But when the Kelo decision came down, he had a new vision. It was a plan so beautifully ruthless, so poetically retributive, that it practically begged to be formalized in a press release, which he quickly drew up.

Clements decided to use the Supreme Court's own ruling, effectively permitting cities to seize homes for private economic gain, to go after the home of one of the Supreme Court's own, David Souter. If he succeeds in getting the town of Weare, New Hampshire, where Souter's house is located, to marshal eminent domain against Souter, Clements will raise funds to build his Lost Liberty Hotel on Souter's land. The hotel will also house a small museum that commemorates our trampled freedoms. His current plans call for the original house to be left standing as the site for the Just Deserts Café. Instead of a Gideon Bible in each room, Clements plans to stock a copy of the book that a Library of Congress poll said is the second most influential of all time, Ayn Rand's Atlas Shrugged. As one might have guessed, it's the most influential to Clements.