June 29, 2005

Scalia Sodomy: Perhaps a Preferable Parallel

by PG

Co-blogger Sean derides both the notion that Kelo enables an animus-motivated taking of Souter's property to be legal, and the idea that the Clements proposal to do so is illegal. Sean concludes,

Dave Hoffman puts it this way:

It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.

Come on Hoffman, that isn't at all how it is at all. It is more like if a mugger asked permission for Justice Scalia's wallet, on the grounds that through jurisprudence the Justice had deemed "asking" to make the act legal.

Clements act is inherently legal; he is attempting to use the political mechanism to further economic development in his town. (Albeit for his own reasons.) He got the idea from a case that Souter supported, and he thinks that he can show Souter why he was wrong in supporting this decision. (Even though we know Clements doesn't have a leg to stand on.) Like I said at the beginning, what Clements is doing is reprehensible and stupid, but not illegal.

(By the way, didn't Souter get mugged not long ago?)

Actually, I think it's much more like, say, trying to build a case against Scalia regarding his sexual practices on the grounds that Scalia has supported the constitutionality of such questions' being asked by police and prosecutors. I hope that those who think Clements is correct in his misreading of Kelo -- to think that merely because a justice believes a government practice to be constitutional, also means that the justice thinks the practice desirable and therefore one that should apply to himself also -- are only those who think Berndt was correct in his misreading of the Lawrence dissent.

June 29, 2005 06:43 PM | TrackBack

thoughts from Ethics profs: http://www.legalethicsforum.com/

Posted by: j at July 1, 2005 01:59 PM

I don't see an ethical violation in this.... Frankly, creating a museum out of Justice Souter's home WOULD serve the public interest according to Kelo. Revenue from tourism would almost certainly be higher than what Justice Souter is currently paying for property tax, afterall.

I'm not saying it's a good idea, mind you, but it seems quite constitutional under a ruling that Souter himself voted for....

Posted by: Jed Sorokin-Altmann at July 9, 2005 09:33 PM


I think you're missing that the plan is motivated by a personal animus against Justice Souter, rather than being a plan by the tax-gathering body under whose jurisdiction he is. Kelo permits a taking of Justice Souter's home if doing so is motivated by a desire to re-energize the tax base. Keep in mind how fact-oriented the decision was; the town apparently was declining somewhat and it decided to make a choice parcel available to bidders. Pfizer wasn't out to 'get' the inhabitants of the property; it just happened to be one of the highest bidders for the opportunity.

Posted by: PG at July 9, 2005 10:40 PM
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