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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In Atlas Shrugged, the creative class ceases to create, withholding the benefits of what it most values, in order to protest statist interference. Similarly, Clements aims to abuse eminent domain in order to stop the abuse of eminent domain. If David Souter's 200-year-old home, inherited from his late mother who inherited it from her parents, can be seized for cockamamie reasons under the guise of economic development, so can anybody's.

Clements likens himself to firefighters who, to combat a raging blaze in the forest, will sometimes set small fires in its path to starve the original fire of fuel before it can become an all-consuming wildfire, thus "fighting fire with fire." His numerous critics suggest that he's engaging in vigilantism, and that this is tantamount to protesting capital punishment by killing the guy who throws the switch on the electric chair. But that's a hard sell. Vigilantes operate outside the law, and it's illegal to kill the executioner. By contrast, Clements is operating inside the law, illustrating its absurdity by using the law against itself. "Why," he asks, "should the law be beyond its own reach?"

It's the kind of hypocrisy barbecue that makes media types lick their chops, whatever their political persuasion. So when Clements's press release went out, it reverberated nationwide. After getting picked up by the likes of the Drudge Report, his sleepy little website went from 180 hits to 370,000 visitors. Checks of support came pouring into Weare's town office, even though it wasn't accepting them.

An unapologetic capitalist in proud Randian fashion, Clements started selling "Lost Liberty" items on his website, everything from throw pillows to camisoles. He was flooded with suggestions for names of dishes that he could serve in the hotel's Just Deserts Café. A typical meal might start with the Chicken Seizure Salad and Revenge Soup (served cold). For an entrée, there'd be the Bader-Ginz Burger with Half-Baked Potato or the Eminent Lo Mein. Dessert might include Rocky Road to Serfdom Ice Cream, or perhaps a nice plate of Petit Forfeitures. Even without all the annoying puns, one could easily conclude it was some kind of joke, though Clements's press release warns, "This is not a prank."

When the story broke last summer, I too believed it was just a clever stunt, a laugh-along middle finger directed at The Man. It would be over in a day. But two months later, Clements traveled to New Hampshire from California, visiting Justice Souter's house, or "the future site," as he likes to call it.

With scads of media in tow, he didn't even bother knocking on Souter's door, perhaps not wishing to seem rude, since he harbors no ill will toward Souter personally. Instead, he left behind a Lost Liberty T-shirt and a copy of Atlas Shrugged. When I suggest that this approach was rather un-Michael Mooreish of him, he responds, "I'm not really the stalking type. I hit from afar, sort of like a cruise missile." When asked why he chose Souter over the other four justices, he thinks a bit, then says, "Because his address was the easiest to find on the Internet."

SEVEN MONTHS after his opening shot, it is mid-January, and I'm standing with Clements in a strip-mall Staples in New Hampshire. It is clear now that not only is he not joking about his project, but he's as serious as an objectivist discussion group batting around "egoist reasons to have children" or the extent to which "volition" is involved "in concept formation."

He's come to the "Live Free or Die" state for a weekend of petition drives and rallies. They're being hosted by his local accomplices, an ad-hoc group of concerned citizens who wish to stop eminent-domain abuse. Nonobjectivists from across the political spectrum, they call themselves the Committee for the Protection of Natural Rights (hereafter, the CPNR). The night before the first event, Clements frantically buzzes around the store, complaining about Murphy, of Murphy's Law fame.

Suffering from a cold on the long drive up from the Boston airport, he got lost repeatedly. He's pretty bad about asking for directions. "I have to verify everything myself," he says. "That's objectivism. You get everything directly from the source--it's part of our epistemology." Clements is making a documentary about this whole endeavor, but his cameraman had his flight delayed, throwing Clements's schedule out of whack. He needs 50 clipboards, which Staples has exactly, until one of the clips breaks, leaving him with 49. Throughout these travails, Clements remains optimistic: "You've got to confuse Murphy, use his strength against him."

He settles his tab at Staples for a couple grand's worth of materials, including several hundred copies of the 58-page Kelo decision, which he'll distribute door-to-door in Weare. I ask him to remind me which justices were "for" and "against." He pulls a card out of his wallet that he uses to refresh himself "in case I'm on Fox News." The bad guys, along with Souter and Stevens, are Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer. On the back of the card are talking points, which include: "Give me a TV show. . . . Atlas Shrugged. . . . New way to fight government. . . . If we get enough money, we'll go after the other four." Actually, a New Hampshire libertarian group has made noises about going after Stephen Breyer's vacation home in Plainfield. "But they're libertarian," cautions Clements, "so probably nothing will happen."

Like most Rand disciples, Clements regards libertarians as embryos to objectivists' fully formed human beings: You never know what you'll get when you bite into one. They often don't have "a common ethical background" behind their grab-bag of grievances, which range from keeping the government out of their bongs to not wanting to wear motorcycle helmets. He supports the Free State Project, New Hampshire libertarians' summons for 20,000 libertarians to move to their state. He reasons it's the only way they'll ever win elections.

But still, he finds their addiction to electoral politics to be an exercise in wheel-spinning. "It's like a big game of Dungeons & Dragons for them," he says. "They're like, 'Oh, so and so's trying to take over the party!' Who cares? Your party only has like 20 members anyways. It's silly." He speaks from experience, of course, having suffered the indignities of running for office in the California gubernatorial election.

When porn star and fellow candidate Mary Carey sat in his lap on the Jay Leno show, photos of it "ended up in Japanese newspapers," he says. "The hardline objectivists used that against me, because it's not the objectivist strategy to run for office." Even if you get lucky and win, he says, "you're not going to be able to do anything, or everything's going to be undone when you're through."

The real action, Clements believes, is in "fighting creatively," as he's doing now, turning the government's power against it. While naysayers claim that seizing Justice Souter's house won't stop eminent domain abuse, that's almost beside the point. When the Minutemen hit small portions of the Mexican border in lawn chairs, they didn't actually halt illegal immigration, but they highlighted government ineptitude as never before.

As a lifelong entrepreneur, Clements isn't a big fan of the government. Raised in upstate New York, he's the son of a civil liability attorney, "the type that raises the expense of everything we use. . . . He never ceases to disappoint me." When his dad told him of clients seeking tech subsidies from the government, Clements bristled. "Dad, you're taking stolen money," he told him.

From an early age, Clements was always looking to start new ventures. In junior high, he took over his older brother's disc jockey business. A child of the '80s, he spun Flock of Seagulls and Duran Duran at school dances, though "it didn't make me popular. I'm good at being unpopular." Ever the objectivist, Clements believes that reality should be taken as it is and not as you want it to be, so he is given to making painfully candid admissions.

A bad athlete in a school that rewarded hockey prowess, Clements says he wasn't taunted so much as ignored. It carried over into his adult life and fired his entrepreneurial spirit. "I don't think I'd make it in the corporate world, playing office politics," he says. "I'd be the first one off the island in Survivor. They'd gang up on me. I'd be nailed. I'm too much of a loner. I haven't been in an office environment where I'm going around high-five-ing everyone in a cubicle."

The enduring theme of most of his ventures, both prospective and realized, is frustration with government regulation. Whether trying to start a food-delivery business or matching up venture capital and entrepreneurs, he's always struck by just how difficult it is to operate. Even when he ran for governor, he says, he didn't get in much campaigning because he had to spend so much time filling out paperwork. In a way, that's why he's in New Hampshire now. He's getting his ducks in a row. Sure, government makes it look easy, but it's no small task stealing a person's house.

WEARE IS A TYPICAL New England hamlet, all spires and cemeteries and quaint town-square gazebos. Here, a new Dunkin' Donuts qualifies as an economic boom. There are only about 8,500 residents, even though the population recently ballooned with the influx of Massachusetts tax refugees, or "Massholes" in local-speak. Clements and the CPNR have a multipronged strategy. The town is run by five selectmen, two of whose terms end in March. In order to get Weare to initiate eminent domain proceedings against Souter, the insurgents must persuade three selectmen to vote for it.

The selectmen thus far have expressed unanimous distaste for Clements's project, but that in itself is an interesting plot twist, what Clements calls an "ironic pretzel." They are against the ploy in practice because they agree with the principle. In other words, they, like Clements, tend to look unfavorably on the Supreme Court's Kelo decision, and disapprove of using eminent domain to promote private economic gain even if the local authorities stand to reap tax rewards.

The difference, apparently, is that the selectmen are moral absolutists, believing government should never abuse eminent domain, whereas Clements believes government should abuse it just this once, to advance his scheme and promote his larger purpose. When eminent domain is employed, one often hears that it's necessary for "the public good." Clements would like to know what greater public good there is than shining a light on eminent-domain abuse by targeting the people who permit it.

To that end, Clements and the CPNR have resolved to influence the board, to put it mildly. They quickly gathered the necessary 25 signatures to land their proposal on the March ballot in the form of a nonbinding resolution called a "warrant article." Local handicapping on its prospects for success are all over the map. The warrant article currently sits in the 48th position on a 50-warrant ballot. As Gary Hopper--a former state delegate, Weare resident, and chair of the CPNR--says, it's the kind of ballot where "you sit down in the morning, start reading it, take a nap around noontime, then get back up and finish."

One board member, Heleen Kurk, told me that this entire campaign is misguided. If you don't like a court decision, you don't go around personally punishing judges. She says that, as adamantly as she opposes Clements and company, she'd feel obliged to carry out the will of the people if they overwhelmingly voted "Yes" on the article, which she doesn't think they'll do. But eminent domain loopholes should be closed in the legislature, as her state-representative husband, Neal Kurk (a Clements detractor who Clements calls "Neal Jerk"), is trying to do. In fact, just as in scores of other states since the Kelo decision, New Hampshire legislators are rushing to their statehouse offering all manner of anti-eminent domain legislation and constitutional amendments.

That pleases some, like the CPNR's Hopper, who says, "If legislators do their jobs, they'll stop us from taking Souter's house." But others, like Clements, think that misses the big picture. Such legislation is great for New Hampshire, but what about the rest of the country? As Bill Pierce, a Boeing employee who traveled all the way from Seattle for the rally, says, "That's like saying the federal government's pumping out poison water, but oh, if you don't want it, you can filter it out at your locality."

The second prong of Operation Steal Souter's House is to neutralize the board of selectmen by infiltrating it. CPNR web director Joshua Solomon, a local software engineer, is running for one of the two open seats. Even if they swept the election, they'd still hold only two of the five selectman positions, one vote shy of declaring open season on Souter.

But they hope that an incumbent will be converted to the cause--by a commanding "Yes" vote for the warrant article. That's assuming the article isn't gutted at an upcoming deliberative session that will finalize the ballot language. (If it is, Clements says, he's keeping the lawsuit option open.) "The way I look at this," says Clements, favoring directness over diplomacy, "Souter is sort of like al Qaeda, and the selectmen are sort of like the Taliban. We may have to remove the Taliban to get al Qaeda."

OVER MY WEEK IN NEW HAMPSHIRE, I visit the Souter homestead twice. Once, I go with Clements and Rick Dowlearn, his entertaining sidekick/cameraman who's worked most recently on the Discovery Channel's MythBusters. If you need an urban legend debunked on short notice, such as The Myth of The Exploding Pants, a phenomenon afflicting New Zealand farmers some years back, Rick's your man.

Even supplied with Souter's precise address, MapQuest is little help in finding it. Souter's house is tucked into the middle of nowhere, or "No Weare," as the pun-happy natives would have it. You travel through forests of pine and maple, past a go-kart track, until you get to an unpaved road called Cilley Hill which is missing its street sign, perhaps in a deliberate attempt to throw off pesky reporters.

If eminent domain proceedings were ever initiated against the house, forget the pretense of economic development. The town could probably seize it on grounds of blight. It's hard to tell where the mold ends and the peeling brown paint begins. The red barn-like garage door is rotting from the ground up. The chimney masonry is crumbling. Various windows are cracked, and the shades drawn over them are yellowed, with constellations of worn-through pinholes. The porch windows are without screens, and the fractured concrete porch itself is blanketed in drifts of wet leaves. The puddled, half-bald lawn looks like Souter's trying to run a bathhouse for bloodworms. The whole thing would seem to be a decoy house, where locals might send reporters to have a good laugh, except that Souter's thoroughly rusted mailbox, whose post tilts at a near 60 degree angle, bears his bleached-out name.

For the most part, the unmarried 66-year-old justice has lived in this house since he was 11, long sharing it with his widowed mother, now departed. When court's not in session in Washington, this is where he still lives. A privacy-fetishist, Souter has, over the years, earned a reputation as a parsimonious Yankee hermit. The hermit business is unfair, since he reportedly has plenty of friends. But from the looks of his wreck of a house, the charge of parsimony should stick. Souter is reportedly so cheap that a New Hampshire congressman once told the Boston Globe how an irate Souter burst into the state Supreme Court building, waving around an electric bill that had exceeded $30 in one month. Colleagues who regularly paid $200 "were shocked that he even had an electric bill. They figured he was still out there reading by the wood stove."

While Clements didn't even approach the door during his last visit in August, he does this time, egged on by me. "Let's start a dialogue," I implore, "it'd be good for the documentary." Clements traipses up to the patio, and knocks firmly. Nobody is home. Nobody, that is, except Souter's fulminating neighbor across the street, who starts bellowing, over and over again, "That's private property!"

Clements ignores him at first, then screws up enough vitriol to counter, "Oh yeah, teach him about private property! He just took away your private property on June twenty . . . [the exact date escapes him] . . . the end of June, you idiot!"

On another occasion, I walk about the neighborhood myself, in hopes of having more civilized encounters with Souter's neighbors. Across the street lives Jeremy Gilman, a 24-year-old Marine veteran who drove a truck in Iraq that took small-arms fire 79 times. He's unemployed, living in his parents' basement now that the seasonal firewood-cutting business has dried up. He has great affection for Souter, who he says is like a member of the family. Souter comes over for the occasional New Year's party, at which he never raises much of a ruckus (Souter's not a wear-the-lampshade type of guy). Jeremy even still cuts his grass, or what's left of it, which he's done since he was a kid. He only charges seven bucks an hour, staying in Souter's spending range, since he never had the heart to raise the price on him.

The Gilman yard is littered with all manner of debris, from rusty equipment, to pick-up trucks with beds full of discarded Mountain Dew cans, to a plastic Santa face down in the mud, looking like it toppled off the rail-less front porch. He's skeptical of the whole hotel project--he's never seen a new B&B in the area last longer than two years. He doesn't support it, since he regards Souter as a friend. But if the hotel opens, they'd better have room service, since the nearest Dunkin' Donuts is about a half an hour away.

Around the bend lives Lorry Fottler, who's out pruning blueberry bushes in a Mr. Green Jeans-like outfit. Fottler has known Souter since they were kids--they used to collect stamps together. Fottler too is quite fond of Souter, who he says stops by semiregularly, though not to talk shop. Even so, he says of the George Bush appointee, "Of course, he's been the laughingstock of the Republican party because he's certainly not been conservative." Unbidden, Fottler seeks to correct any misconceptions about Souter: "He's not gay! Absolutely not. He just seems to be an old bach."

Fottler doesn't support Clements's plan, since he too is a private property absolutist (meaning neither does he support the Kelo decision). When I tell him I thought Souter's house was abandoned, he says, "You're tellin' me. He doesn't make much money you know. Christ, the poor guy. You know what he told us? He said if anybody asks where he lives, tell them it's here." In fact, if Clements does get Souter's house, Fottler says the justice has an open invitation to crash in his barn.

This sort of goodwill is precisely what gets destroyed when civil society frays as entire neighborhoods are wiped out by eminent domain, one of the reasons that Winnie Ilsley, who lives down the street from Fottler, doesn't support Kelo either. Winnie operates a small doll shop on her property, which is closed when I drop by. I ask to see it, saying I'm genuinely interested, but Winnie's been burned by reporters before. An excellent judge of character, she says, "You're a phony, and I don't mind saying it." She's against them confiscating Souter's property, but if they do, and a hotel is erected, "I'll be the first one there." Sometimes it's nice to get away from the stresses of the doll business, even if it's just around the corner.

If the project ever goes forward, the final hurdle will be the town's building inspector, Chip Meany. I go to see him one morning in the middle of a snowstorm. None of the roads seem to be plowed, and I ask Meany if Weare's run out of money. "We just leave them like that to give you guys practice," he says.

Chip has a walrus mustache and looks like Wilford Brimley. He wears a Code Enforcement Officer badge on his belt, which brings an air of authority to the Hatfield vs. McCoy property disputes he frequently has to mediate. Meany is against the Souter taking, too, just as he's against all eminent-domain takings for private gain. But he says he'll support it if it's the town's will.

Before he does, however, he mentions many other hurdles that Clements will have to clear. If Clements gets past the Tali-board, as he calls the selectmen, Meany says he'll still have to prove the project's economic viability--a shaky proposition, considering the location of Souter's property. Assuming the town would give Clements title to the house, the whole thing still might get tied up in court. Rumor has it that Souter has legal connections. But even if Clements overcame these obstacles, Meany would still deny him, because first he'd have to go to the five wise men of the zoning board to get "special exception" approval for the project. "Once that's done," says Meany, "I'll give him a permit."

It would pain him, however, to do so. "I think a statement definitely needs to be made [about eminent domain abuse], though the wrong statement's being made," says Meany. "Because when you take one man's land, you take everybody's." I mention to Meany that he just essentially made Clements's point. An old '60s radical and Vietnam vet who at least appreciates the artfulness of the stunt, Meany nevertheless adds, "It's a convoluted form of logic. It's a dog chasing its tail. Whichever point in the circle you interrupt the dog, you still have the same dog."

OTHERS AREN'T SO CONFLICTED. On a Saturday morning, a small but hearty band of activists break into 15 teams, blanketing Weare to get a petition signed in order to demonstrate support for the warrant article. It's just for show. But that doesn't deter Clements. "The whole thing is pretty much for show," he says. They also invite people to the next day's rally, pass out literature touting Joshua Solomon's candidacy, and unload the paper brick that is the Kelo decision--a little light weekend reading for the townsfolk.

I go out with Clements and his cameraman. The houses in Weare are so widely spaced that we don't reach many of them. "I should've subcontracted with some Jehovah's Witnesses," he laments. We slide up ice-covered driveways. In his dress shoes, Clements gracefully skates across them like an objectivist Brian Boitano, cautioning us clumsier types to take small steps and to keep our center of gravity over our legs.

At door after door, bed-headed men in Patriots sweatshirts and women in Tigger pajamas greet us. With the exception of one woman, who kindly tells us her husband will shoot us if he finds us filming on their property, Clements gets a warm reception. While many Americans can't even identify their congressman, a surprisingly high number of Weare residents have heard of the Kelo decision. Many are well aware of the Liberty Hotel project, even if they don't recognize Clements from his appearances on Hannity & Colmes. In all, only two people decline to sign his petition, and one of those supports it, he just fears retribution. Of Souter, a man who doesn't typically arouse great passions, they say things like, "Get him!" and, "That idiot!" Clements smiles when they say this, turning to me and explaining, "He has his opinions. We have ours."

The next day, a healthy crowd packs the Old Town Hall, despite the AFC championship game being televised simultaneously. They hear about property rights and selectman races and also hear from Ron Bianco, America's foremost eminent domain song parodist, who treats the crowd to repurposed Dylan covers such as "Knockin' on Souter's Door."

They also hear about the only other thing Weare is famous for--the Pine Tree Riot. Before the American Revolution, King George III had dibs on the town's tall white pines, which he used for sailing masts for his Royal Navy. The townspeople were forbidden to use them, even though the trees stood on their property. But they ignored the injunction, and helped themselves.

When the sheriff came to exact the king's toll, he holed up at a local inn. Knowing this, more than 20 townsmen blackened their faces, broke into his room, and beat him bloody with pine switches. As Keith Lacasse, an architect and former hockey goalie who is also running for selectman, tells it, the townsmen then put the sheriff and his deputies on their horses and cut off the horses' ears and manes to devalue the animals. Then they "slapped them on the ass and sent them down the road, with people lining the streets jeering. And that was just over pine trees! Can you imagine if those guys were around today?"

Outside the hall afterwards, Clements is in a close huddle with a United Airlines pilot who's come from New York, and who says he'd be willing to move up here immediately and run for selectman if it'll make the difference. It turns out election rules forbid it. He missed the cutoff for residency. But his willingness innervates Clements. When I ask him what he's looking for in a candidate, he says, "They need to have a pulse, and support the project. Those are my two things."

Clements says if they don't swing this election, they'll be back come the next one. He's in it to win it, and isn't going anywhere. The project is too important to abandon: "I'd like to show them that without property rights, there is no economic development. I'd take those five justices on a year-abroad study--to Zimbabwe, North Korea, Cuba, Canada." Just kidding on the last one, he says. "But I don't have the money for a year-abroad program at my educational institute. So I thought we'd just do some home-schooling. That's what we're doing. We're doing a home-schooling program. And David Souter's our first student."

Matt Labash is a senior writer at The Weekly Standard.