When television cameras were first brought in to record Senate
proceedings in 1986 (thus realizing the Founders’ idea of a
bicameral House), Ronald Reagan offered the senators some wisdom
gleaned from his acting experience. “Learn your lines, don’t bump
into the furniture — and in the kissing scenes, keep your mouth
closed.” Democrat senators only kiss up to Supreme Court nominees
when they are liberals; so why are so many of them displaying pursy
lips after the Alito committee hearings? Possibly because they have
the sensation of sucking on lemons.
If indeed Alito goes a long way, as currently anticipated, it
might behoove folks on the righter side of issues to see what
Supreme injustices are left to be undone. There is nothing like
playing with a home court advantage, and it would fall far short of
ambitious to be content with the thought that the prospects for new
damage have been arrested. Clearly, to take a run at Roe vs.
Wade in the first trimester, as it were, would be injudicious.
But it’s important to draw first blood lest you become
bloodless.
Which brings us to the piquant tale of Mr. Logan Darrow
Clements. This man with the three cognomina may become more than a
nominal cog in the historical battle to set the Supreme Court
aright. In his low-key way he has taken aim at Kelo v. City of
New London. That disastrous decision of recent vintage allows
municipalities to initiate takings of private property for the
public advantage of enhancing the local tax base. This means that
if The Donald convinces the city elders that he could build a
revenue-generating casino right where your patio used to be, that
putative benefit trumps your ownership. Your good deed will not go
unpunished.
Mr. Clements has chosen a novel means of protest, one he
compares to the Boston Tea Party. He has proposed to the sleepy New Hampshire burg of
Weare that its most illustrious citizen, Justice David Souter, be
evicted from his home to allow for construction of a hotel, the
Lost Liberty Inn. On what grounds would it be built? On Souter’s
grounds. That is, the grounds of his vote with the majority in
Kelo. Clements has already assembled the 25 signatures
required to place his petition on the ballot in March: nine out of
ten locals approached signed on the dotted line! Perhaps his idea
is less dotty than it seemed.
True, it’s a safe bet that he won’t win by this direct method.
Still, this is a wonderful consciousness-raising tool on an issue
that is a sure winner for conservatives. When the cons line up with
the little guy against the rapacious rapine of their meager
holdings by fat cats with deep pockets, they set the Democrat
stereotype on its head. If somehow this pushes the matter back
before the Court, we might just see Roberts and Alito flex some
muscle and stare down that hubristic decisis.
Here is the dream scenario, the one that would be “more fun than
a human being should be allowed to have.” Clements wins in the
township and Souter sues to get his house back. The case comes
before the Supreme Court with Souter forced to recuse himself. Then
they vote to overturn Kelo and give their buddy his house
back. Thus, Clements who was a suitor to gain the house loses in
order for Souter to get clemency; Souter’s Pyrrhic victory negates
his vote in Kelo and Clements’ gambit brings his greater
cause the victory.
Whether something like this actually occurs in relation to
Souter’s house, it remains good advice for conservatives to target
Kelo as their first effort to reverse prior misguided
verdicts. It has a number of wonderful features: it’s pro-little
guy as mentioned, it’s easy to understand, it’s relevant to
everyone but a select few wealthy developers (and municipal
bureaucrats), and it clearly restores the reasonable meaning of the
takings clause; namely, that only governmental needs such as roads
and power stations take precedence over private property. Even
those who unwisely acquiesced in allowing the “wetlands” to usurp
individual ownership will balk at allowing Trump’s rights to tower
over theirs.
Incidentally, if the Kelo precedent stands but Souter
loses his house in the process, it will be constitutionally,
legislatively and judicially disappointing but it sure will be
worth a chuckle in defeat. Remember the famous exchange of
telegrams between William Randolph Hearst and James Gordon Bennett.
Hearst wanted to buy the New York Herald from Bennett, so
he sent him a telegram asking the price. In return he received:
“Price of Herald three cents daily, five cents Sunday. Bennett.”
It’s time we sent telegrams to the David Souters that we value
their property about as much as they value ours.
