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.