Thursday, June 30, 2005

In Re: David Souter's House

The liberty wing of the Internet is incandescent with reports that a developer in California plans to file an application with Supreme Court Justice David Souter’s hometown to seize his house to be converted into what he contends is a much more valuable use, a hotel and museum devoted to the disappearance of American freedom. (A Google search with Justice Souter’s street address, which I choose not to repeat here, already yields over 5200 hits, fewer than 72 hours after the proposal was announced.) Making it all the more delicious is that the proposal relies heavily on the tortured reasoning of Kelo et al. v. New London, to which Justice Souter attached his name.

There are several things to think about here. The Manchester Union Leader has a story that depicts the effort as a warm and fuzzy piece of Americana, fun for the media for a few days but unlikely to come to much. The quotes about the affair in the article and elsewhere are revealing. One resident indicates that to take his home in particular would be a disaster, arguing that "It's a horrible idea. That's a very historic part of Weare." The Boston Herald has a New Hampshire state legislator saying that “Justice Souter's property will be protected by the good sense of New Hampshire townspeople.” Undoubtedly the residents of New London now soon to be displaced from their homes wish they had similar guardian angels.

Making it more interesting is that the property-tax assessment of Justice Souter’s home is apparently only $100,000. This seems like a relatively low value for a home in the red-hot real estate market of New England. The MSN House and Home site allows the comparison of various aspects of towns and cities all around the country. While there is no listing for Justice Souter’s bucolic burg of Weare, the town of Peterborough in the same county has an average home value of $163,900, with appreciation last year of 8.96%.

Why such a low assessment? There are several possibilities. The first is that the assessment is an honest one. The Concord, NH Monitor has a picture of the home, and frankly from the photo it does seem a bit of a dump. But given the nature of New Hampshire home prices generally, this seems to be an implausible explanation by itself. Perhaps Justice Souter’s influence keeps his assessment down, although in such a small town that too may be unlikely. Perhaps as a well-educated and well-connected attorney he is highly skilled at getting low assessments, which is quite a game in itself. Or perhaps he has friends looking out for the eccentric local who made good.

But none of those latter reasons inspire confidence. Save the Souter-lives-in-a-hole explanation, they all suggest that the assessment process is some mix of corrupt and arbitrary. People who can game the system get low assessments, people who can’t, don’t.

And that is revealing of the entire problem with Kelo, and with the expansion of eminent domain generally. We can’t tell, despite Justice Stevens’ optimism, whether the process is driven by the public good or is fundamentally corrupt. The increased freedom of action given to authorities to pick their own reasons for seizing (and assessing) property gives the opportunity for the government to reward its supporters and punish those who don’t support it in sufficient degree. Even if the decision is taken properly, there is no way we can know that, and certainly no reason to assume that everything is in order. It looks like the well-connected are protected, and the lumpen citizenry must simply sit there and take it. That local officials react so skeptically to a proposal to turn Justice Souter’s reasoning on the property most dear to him cannot help but reinforce this notion. When it is his house, the system works. When it is the homes of anonymous people without benefit of Justice Souter’s reputation and influence in New London, or in Freeport, TX or in Palmdale, CA, things turn out differently. Yet Kelo is predicated on trusting that any seizure that comes through the legal process must be deferred to. As with any action that increases the government’s power to act capriciously, this is a recipe for increasing skepticism by the citizenry about the hidden corruption of their government, whether it exists or not. A process built on such contradictions generally ends badly.


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