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The Lost Liberty Hotel is a proposed hotel on the site where one of United States Supreme Court Justice David Souter's properties currently sits; the proposal is a reaction to the U.S. Supreme Court decision in which Souter joined with the majority ruling regarding the scope of eminent domain. The hotel's construction appears unlikely; local officials report that the proposal's sponsor "hasn’t done anything" to advance the hotel plan with the town of Weare . Many observers have viewed the proposal as no more than a publicity stunt.
History
Souter was in the five-Justice majority in Kelo v. New London, a 2005 decision in which the Court held that the United States Constitution did not prohibit a local government from condemning private property in order to transfer the land to a commercial developer, so long as such use served a demonstrated "public purpose," such as higher property tax revenues.
On Monday, June 27, 2005, Logan Clements issued a press release announcing his proposal to build a hotel on property owned by Justice Souter. Part of the process of building the hotel would be the seizure of Souter's home under the eminent domain powers that Clements claims the Supreme Court declared permissible by the Kelo decision.
Clements, CEO of Freestar Media, LLC, argues that the City of Weare would gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road rather than a private residence. Clements said that he plans to partially fund the hotel using investment capital from wealthy libertarians and hopes that prominent libertarian groups will be regular customers.
As part of an effort to establish a quantifiable public benefit of the proposed hotel, on June 29, 2005, Travis J. I. Corcoran created an online pledge where potential hotel visitors can affirm they would stay there for at least one week. By 20:26 GMT on July 1, 2005, over 1,000 names appeared on the list.
Clements and his staff claim to be serious about building the hotel and insist they will build it given enough public interest and financial support. They are currently taking suggestions through their website for menu items at the hotel's Just Desserts Café, and have announced a contest among talk show hosts to see which one can get their listeners to raise the most money toward building the hotel.
Those who doubt Clements's seriousness can point to his failure to establish a discrete entity to hold funds raised for the project, his call on supporters to make unrestricted donations to his enterprises rather than contributions dedicated to the project, and his requests for such in-kind donations as a Lear Jet to enable him to travel conveniently between New Hampshire and his West Coast base of operations.
Clements said that the hotel would more likely resemble a bed and breakfast than a full-sized hotel.
The Farmhouse
Clements's press release said that the Lost Liberty Hotel would replace the farmhouse where Souter spent most of his youth. In fact, Souter moved there when he was 11 years old along with his family after his grandparents had passed away. Souter's father was a banker with the New Hampshire Savings Bank in Concord. He died in 1976, but Souter's mother still lives near the farmhouse in a retirement home.
Legal Criticism
Critics of Clements's proposal hold that it is based on a misreading of the Kelo decision. Souter joined in the majority opinion, written by Justice John Paul Stevens, which made clear that the Court's decision did not go so far as to legitimize takings such as the one Clements proposed:
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. . . . he hypothetical cases posited by petitioners can be confronted if and when they arise.
Despite this explicit language, the Clements press release declares that the Court has already decided this issue.
Notable commentary
Professor David Hoffman commented that the claim by Clements was frivolous given the intent of Kelo. Hoffman wrote:
- his kind of retaliation against a Justice who merely
wrotevoted for a majority opinion (applying a century of solid precedent) through use of a frivolous land claim strikes at the heart of our government of ordered liberty. It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.
He also considered the possibility that Clements acted illegally under federal or state law if his actions amount to threatening a judge, though he concluded that criminal prosecution was unlikely.
Professor Eugene Volokh, a prominent conservative blogger, stated on his blog that he believes that Clements' actions are political speech protected by the First Amendment to the United States Constitution. However, he criticized the hotel proposal itself, on the grounds that "we shouldn't seriously want government agencies to retaliate against government officials by seizing their property."
New Hampshire's Republican state representative from Weare, Neal Kurk, sees the hotel plans as "poetic justice," as he opposed Kelo, but he hopes that "Justice Souter's property will be protected by the good sense of New Hampshire townspeople."