The musings of one Andrew Langer - defender of liberty, passionate protector of individual rights, foodie. (Note: Said Musings of Andrew Langer are his own, and the views represented herein are likewise his views, and not the views of any other people, entities, foodstuffs, etc [unless otherwise specifically and explicitly noted].)

Friday, February 17, 2006

Eminently Justified?

It's been a long week. I headed down to Central Florida to give a speech on health care of all things. Yes, I know - what do I know about health care? Well, not as much as NFIB's experts, but they weren't available. So, I've been boning up. Which is why the Liberty Blog's been slow for a few days. (The speech went well, thank you for asking.)

But now I want to turn back to an issue I raised last week - the Hartford Courant's editorial on the Lost Liberty Hotel project, published on the 8th:,0,4889197.story

Eminently Unsuitable Response

Americans of all political ideologies objected last summer when the U.S. Supreme Court affirmed New London's right to evict homeowners to make way for private development.

Outgoing Supreme Court Justice Sandra Day O'Connor, writing in dissent of that ruling, spoke for many when she said: "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."

Eminent domain should be a tool of last resort. It should never be invoked in favor of a private party just because that party can produce greater tax revenue than the rightful property owner.

But the proper way to defend against that happening is to tighten laws and spell out specific rules for the drastic step of taking someone's land in the interest of the public good. An example of improper response is the action of eminent domain protesters who staged a frivolous attempt to seize the New Hampshire home of Justice David Souter.

Justice Souter, who voted with the majority in Kelo vs. City of New London, but didn't write the opinion, owns a 200-year-old house in Weare, N.H. A group led by a California businessman named Logan Darrow Clements proposed building a hotel on the site. Mr. Clements claimed Weare would earn greater tax revenues and economic benefits from his plan than from the justice's hideaway.

This is silly, of course. Justice Souter did not make the law and shouldn't be subject to such abuse even if he did. It's wrong to harass him for doing his job. Mr. Clements' view that his protest was analogous to the Boston Tea Party is ludicrous.

The stunt undermines the seriousness of the eminent domain issue. Fortunately, the people of Weare saw through it. They voted not to put the issue on the ballot.

Copyright 2006, Hartford Courant
---end quoted material---

I disagree, vehemently (imagine that!) - and I wrote the following back to the paper:

Letter to the Editor Re: Object Lessons Are "Eminently Reasonable"

To the Editor:
I disagree with the Courant’s characterization of the movement to condemn Justice Souter’s home as an “unsuitable” response (Eminently Unsuitable Response, Feb. 8). First, the High Court’s basic duty is to take each case on an individual basis and determine whether the issues raised therein are constitutional or not. It is far too easy for members of the court to hide behind "stare decisis" in order to avoid making hard decisions. And despite long-standing precedent, the court has been known to change course when it becomes apparent that the one prior courts have chosen is ill-advised.

That’s the essence of a "landmark" decision.

Second, object lessons are always tremendously effective—especially when it comes to issues of what’s mine and thine. All too frequently in the arena of property rights, we have instances where people are inflicting their vision of how someone else's property ought to be used, without any real sense of just what that means for the owner of that property. Without that sense, policy is made in a vacuum – and we are left with decisions like Kelo.

This happened in Utah several years ago when Robert Redford was passionately advocating for the designation of hundreds of thousands of acres of land as wilderness – a decision many in Utah thought would harm local residents (much in the same way as eminent domain). Then activists in Utah began to investigate the conversion of Mr. Redford’s ranch land into wilderness.

Redford has since cooled his enthusiasm for such designations.

The Lost Liberty Project would have taught Justice Souter an equally valuable lesson: that Supreme Court decisions have a real world impact, an impact that can be felt by anyone.


----end quoted material---

Anyone... even a Supreme Court justice.

What I was only able to allude to, given space and editorial constraints, is that the point is that Justice Souter wasn't doing his job, and that reliance on prior decision in this line of legal reasoning is, in fact, an avoidance of carrying out his duties in a responsible manner.

And in any case, since when is "I'm just doing my job" any excuse when someone is committing an unjust act?

That's a rhetorical question I'll leave you all to ponder...

Next up: Popular Mechanics' take on Katrina...

- Andrew Langer


Anonymous Anonymous said...

Does making policy in a vacuum include cutting programs that affect the poor or mentally ill when one has never been poor or mentally ill (nor anyone in that person's aquaintence or family)? Or does that vacuum only apply to issues that are important to you?

February 17, 2006 10:12 PM

Blogger tohan said...

You should stick with healthcare .. ..obviously you do not understand this issue. The Kelo decision was a turning point in the American life.Four liberal judges bent to turn the 5th Amendament on it's head, made a big MISTAKE.A mistake which open the eyes of (most) Americans.

February 17, 2006 10:22 PM

Blogger Andrew Langer said...

Tohan -

You clearly haven't read anything that I've written regarding Kelo - not the least of which was my response to the Hartford Courant editorial, which makes it clear that I stand foursquare against the decision itself. The high court had an opportunity, and the majority turned it's back on justice (and the Constitution) in finding for New London.

I urge you to look at my first blog article on this:

I've been fighting for property rights for a decade now, and was talking about the abuse of eminent domain for a full two years before Kelo was decided. I think you and I are largely on the same page.

February 17, 2006 10:29 PM

Blogger Andrew Langer said...

To Anon:

I could respond in a number of ways to that comment - I'll take three to start:

1) First off, the type of government policy upheld in the Kelo decision _PARTICULARLY_ affects the poor, those least able to fight for their own rights in the face of government power. These are the people who are generally living in the economically depressed areas which are ripe for private-to-private eminent domain done in the name of community redevelopment - Susette Kelo and her neighbors, the folks down in Missisippi who were displaced for a parking lot, folks in Port Chester, NY, etc.

So, I submit that when I'm talking about eminent domain abuse, I am talking about policies that impact the poor directly - and fighting on their behalf.

2) All politics is personal, in the end, and people fight for the issues that are important to either themselves or their direct constituencies. There are specific social policies that resonate with certain legislators or activists because of their personal experiences with those issues, and other policies that leave them cold because of a lack of experience.

I do think that context is important in public policymaking.

3) Likewise is paying attention to the structure of government and the reasons therefore. Our form of government is comprised of different branches and levels for a variety of reasons - and each branch and level has its role.

When those roles are confused, the system is strained to the point of being broken - the federal government has certain missions while state and local governments have other missions. Is it appropriate for the federal government to be getting involved in local educational issues, for instance? Personally, I don't think so.

To me, the federal government's duties are carefully enumerated in the Constitution: defense of the nation; protecting individual rights (civil rights or liberties); safeguarding and promoting a free and prosperous economy, both between the states and within the international community; and a few select other powers.

Once we enlarge those powers, we do two things: enable the central government to engage in a great deal of mischief; and lose its focus on those duties that we have commanded it as a people to do.

It's been a long time. I hope 2006 is finding you well - you have been in my thoughts.

- Andrew

February 17, 2006 10:44 PM

Blogger Andrew Langer said...

Tohan -

Or were you writing to Anon, and not me? If so, I apologize for accusing you of not having read what I had written.

- Andrew

February 17, 2006 10:55 PM

Blogger tohan said...

What bothers me about your logic is you are giving the liberal justices an easy way out rationalizing their decision based on precedent.Scalia said lately that all we have to do is "elect justices who know how to read",our Constitution being a Legal Document not subject to interpretation.
If we have to follow your logic we will have to do exactly the opposite: elect judges who do not know how to read,this way they cannot read those "precedents" you keep refering to.You have to admit ,this will be hard to do.

February 18, 2006 10:30 AM

Blogger Andrew Langer said...

I disagree, for a whole host of reasons.

First and foremost, justices already do this - I'm not giving them anything they don't already have or do.

Remember the John Roberts' hearings and all that talk about "stare decisis"? Reliance on precedent cuts both ways - it gives us a legal system that is, by and large, not given to unexpected or unprecedented outcomes.

But it also allows judges an "easy out" when they don't want to make hard choices in situations that might take policy in a sweeping and difficult course: forcing communities to desegregate, for instance. Or telling a community that it can't prosecute someone for carrying a gun in a school zone, because the federal law is unconstitutional (because the federal government has no power to regulate in that arena). Or telling federal law enforcement that it can't force local sherrifs to do their work for them, because that violates a host of constitutional commands.

When the high court decides to act in those arenas, it means that a lot of people are going to have to do things differently. It means headaches and complications and a lot of unhappy people.

But the right thing to do _IS_ hard.

We want justices who will do the _RIGHT_ thing.

I'm up in PA, so I can't comment in as detailed a fashion as I might. I'll reiterate what I said earlier, and add the following:

Tohan, I admire your interest and passion in the issue of property rights, specifically in the area of eminent domain abuse. I urge you to read what I've written on the subject on this blog - I think it will help you really understand this subject.

February 18, 2006 4:17 PM

Blogger tohan said...

So we disagree....That's OK..When you'll decide on what side you are on I will be happy to know... Good luck

February 19, 2006 8:44 AM

Blogger Andrew Langer said...

Tohan -

You think I'm confused as to which side I'm on?

I've been talking about the crisis of eminent domain abuse for nearly three years now, long before 99.99% of America had heard the name "Susette Kelo".

Not just talking about it either, but actually doing something about it, too - figuring out possible solutions, trying to raise public awareness, building coalitions.

I had NFIB poll it's membership on the subject in the summer off 2003, and even without The Kelo decision, 77 percent of its members came back and said that private-to-private eminent domain stinks and that something needed to be done.

The main obstacle was a lack of interest among legislators, as there was no public outcry, so no motivation.

And this is going to require a legislative solution. Something else I've been talking about for years is the fact that fighting the issue of property rights in the courts is a losing proposition. It's expensive, it's time consuming, and ultimately it's a crapshoot.

But enough about me. I'd be interested in hearing what you've been up to, vis a vis property rights generally, and eminent domain abuse specifically, either before and after the Kelo decision (preferably both)?

- Andrew Langer

February 19, 2006 5:22 PM

Blogger tohan said...

I'm pretty active. My local politicians hate me because I'm a pain in their greedy neck, the legislators in Tallahassee get my mail regularily and I'm happy to say Marco Rubio and his Committee to Protect Property Rights is moving in the right direction. In New York where I live half a year I'm not as active yet because they are not as aggresive and rapacious as down south. I'm also organizing my neighbors ,which is harder then anything I'm trying to do.
Yes, I think you are confused about the judiciary because you are a lawyer and you are too close to them. Is NOT hard for Stevens and Souter to do the right thing. I personaly think that Stevens is senile and Souter is evil. The other two who Clinton nominated,well, they are lost cases, we have to work around them.

February 20, 2006 8:47 AM

Blogger Andrew Langer said...

A couple of things, Tohan. I'm glad that you're involved, both in FL and NY. Having grown up in NY and been a property rights activist in FL, I have firsthand knowledge of how important it is to have active folks like you involved in the issue. For the longest time, New York had some of the worst eminent domain laws in the country, something that I railed against, and Florida has had its problems, too.

In New York, I urge you to get to know Carol LaGrasse and the Property Rights Foundation of America. They have an annual conference near Albany every fall, where NE property rights activists gather to speak, listen, learn, trade ideas, etc. I think you'd find it very worthwhile (I've been several times, as both a speaker and a participant, and have found it worthwhile).

In FL, there is a Coaliton for Property Rights - based in Orlando, but expanding. They not only do events, but are tremendously active in bringing people together to influence folks in Tallahassee. I spoke on the eminent domain issue at one of their events in September, and was impressed by their organization and the caliber of activists that they are attracting.

I don't know where you are specifically in FL, but I'd also encourage you to get to know David Russell, if he's still around, in Crestview, FL (northwest Florida) - David's been working the property rights issue in Tallahassee for years, and I found him to be a good resource, as well as his group, Citizens for Constitutional Property Rights.

I'd also like to urge you to read some of the other things I've written here on the blog regarding this, specifically the following:

I think it would give you an fairly good sense of where I stand.

More generally, you can find everything I've written here on property rights (at least, I hope it's everything) by using this link:

And I'm not a lawyer. I've worked for two law firms and one non-profit legal foundation (specializing in property rights). I was the reader for a blind environmental lawyer whose passion was private property rights, and I got quite an education in the law while in his service. I helped him and his wife write a textbook on property rights (Property Rights: Understanding Government Takings and Environmental Regulation).

February 20, 2006 3:09 PM


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