Sunday, July 31, 2005

Kelo v. Abortion?
I interupt my blogging retirement for this quick post on something that I have been thinking about. After Kelo (where a city government was given permission to seize a house for a private purpose by the highest tribunal of the judiciary branch), some began to propose using the decision against Justice Souter (who voted with the majority) by seizing his longtime house to build a hotel. As Professor Volokh pointed out, such a condemnation would not violate Kelo:
Under Kelo, it does seem that the government couldn't seize Souter's property just because it doesn't like his policies. But Kelo speaks to the intentions of the government, not of those who are doing the development.

Under Volokh's interpretation of Kelo, this means that under the decision a pro-life organization could seek to have a series of planned parenthoods in a geographic area condemened in order to put up shops that would yield greater tax revenue. That their motivations are suspect is irrelevent, because the only motivation that should trigger heightened court scrutiny would be the motivation of the city board that hears condmentations matters - and that boards' motivations would be to simply increase tax revenue. Nor would this be an undue burden under Planned Parenthood v. Casey, because Planned Parenthood would always be free to buy another plot of land to set up another planned parenthood - it would just be out the moving costs and be forced to watch the pro-life movement get a symbolic victory. Finally, even assuming I'm wrong on both of these, precedent does not speak explicitly to this legal tactic, and it would draw further negative attention to the Kelo decision, making any ultimate legal result mere icing on the cake for those who are pro-life (which I am not one of).

1 comment:

Kira Zalan said...

I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.