Occassional reflections of a moderate (hey at least I think I am)

Thursday, June 30, 2005

Kelo and analogies

As I said recently, the push to have Justice Souter’s house taken by eminent domain is a truly stupid idea . A good read is Eugene Volokh’s observations about this Dave Hoffman Prawfsblawg piece.

Prof. Volokh notes that Prof. Hoffman’s analogy to “mugger [going] to Justice Scalia on the street and [asking] for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare” is not apt. I agree that the analogy is not apt, but I have been wondering what an appropriate analogy might be. So here is my first attempt:

Bowers v. Hardwick (ignoring Lawrence of course). As I recall, the statute in question in that case criminalized both homosexual and heterosexual sodomy, though the only question the court addressed was homosexual sodomy. What if a homosexual activist was upset by this decision and petitioned his local police force so that when a member of that majority opinion visited Georgia with his spouse, the couple is surveilled (let’s assume legally) and caught in an illegal act?

I have no problem with the rhetorical flourishes surrounding the “poetic justice” angle of the story. It may be a perfect thing for a libertarian/conservative Michael Moore wannabe. And (other than concerns about “punishing” or intimidating justices) I see no problem with Justices being subject to the laws they enact.

If, however, one thinks that not only was Kelo an affront to constitutional rights but also an offense to a human/inalienable right, then I do not see how one can justify actually pursuing it. To do so would be to say “I am going to make you pay for your errors by making you less human.” At the extreme, could a death penalty opponent take solace if a Justice who upheld the death penalty was put to death? Perhaps none of the proponents think that there is anything but a state granted right at stake.


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