Lost Liberty Hotel is a bad place to stay

Property rights actvists have scored a PR victory with the coverage of their attempt to seize Justice Souter's house in New Hampshire and turn it in to a "Lost Liberty Hotel." You have to give the Libertarian's credit, this is a pretty creative (if petty) way to make a point. Libertarian's are not usually so sparky.

But what they'll gain in media coverage they'll lose in pretense for intellectual honesty. Shouldn't Libertarian's adhor the idea of taking someone else's property for a PR stunt yet?

Souter's decision in Kelo was the correct one.

Amendment V of the Constitution reads in relevant part:

"nor shall private property be taken for public use, without just compensation."

The line of cases supporting Kelo is long and without much controversy except among a few property rights extremists. The definition of "public use" which is central to the case, is necessarily a term that the legislature must define; the term is too amorphous and susceptible to alteration for the court's to give it meaning beyond its plain language. And on its face the only way to define "public use" is to say that it is a use that serves the public. That is, it contributes to the public good by conferring some benefit--economic, aesthetic--or serves some public benefit--reducing crime, increasing access to affordable housing. The more restrictive definition of public use that property rights activists want to use would limit the term "public use" to only those things which the public "uses": roads, schools, water filtration systems, etc.

But this definition is completely unsustainable. Most of what government does is organizational and administrative in the sense that it is not a thing accessible by the public. For every public road there is a highway department maintenance station. The road may be for the public to travel on but the maintenance station is for public employees only. The libertarian interpretation of the 5th Amendment's takings clause would allow the road to be built but not the nearby maintenance station.

The dissenter's argument collapses if you look at it as a principal that would need to be applied consistently over time.

For example, what if the legislature in New London, CT had intended to build a prison on the land and taken the property with that announced intention. Clearly that would have been a "public use" and presumably would not have aroused the property rights activists. But what if the legislature changed its mind one year (or 20 years) later and decided to sell the land to a private developer. The land would no longer be for public use. Would that make it unconstitutional according the Kelo dissenters? Would the town have to offer it back to the original owners? Going down this road shows shows that the dissenters are either foolish (for not seeing the pitfalls) or else are simply trying to undermine the basis for eminent domain at a more fundamental level.

Souter was correct to find that the 5th Amendment did not bar New London, CT from taking the land by eminent domain. The court's are not well informed enough on the facts and considerations necessary to determine when a use is "public" Such decisions are for the legislature. If the property rights activists were truely concerned with the errosion of their rights they would expend all of their effort in drafting a model state law which could be adopted by every state in the Country. The law would set out the parameters for taking private property and transferring it to a private party for development and those parameters would be sufficiently narrow to prevent the government from taking property for all but the most compelling reasons.