Wednesday, June 29, 2005

Where Randy Barnett is Wrong

I think that Randy Barnett, a great law professor and libertarian, gets something wrong when he criticizes people who are taking the proposed eminent domain action against Justice Souter seriously. After linking to the story of the proposed taking, Barnett writes:
Update: I had posted this link facetiously but see that some commentors, both pro and con, are taking it more seriously. Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. I had considered deleting this post altogether--and perhaps this would still be a good idea--but, since other blogs had linked to it, decided instead to add this postscript.

Although a municipality cannot take land to punish a judge, I don't see why a developer cannot want to use land for a hotel to punish a judge. The intent of the government, not the private party, matters.

There are lots of libertarians like me who would make a pilgrimage to stay at a hotel on Justice Souter's property. Maybe that makes us mean-spirited. Who cares? The point is, our outrage at Souter makes his property very economically attractive. (I wouldn't make a pilgramage to stay at a hotel down the street from Souter, for example).

Does it matter why the property is economically attractice to a developer? I don't think so. And assuming that the property is actually economically attractive, a municipality could justifiably believe that condemnation of the property for development would generate higher tax revenue. Thus, the taking would be legal.

No one is suggesting (are they?) that the city Weare would have a bad motive in taking Souter's property (other than the bad motive expressly allowed by the Court in Kelo, that is)?

Interestingly, if Justice Souter's house were taken by eminent domain, and he appealed all of the way to the Supreme Court, he would have to recuse himself, leaving the Court at a 4-4 split. If the developer were to also make a play for Justice Stevens' house, then Stevens would have to recuse himself, leaving a 4-3 majority for enforcing the takings clause as written.