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The former site of Susette Kelo's house, May 2014. Photo by Ilya Somin.

The recent release of Justice John Paul Stevens' papers have attracted new attention to the Supreme Court's controversial 2005 ruling in Kelo v. City of New London, the 5-4 decision in which the justices ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings that are for a "public use." Notoriously, the development project that supposedly justified the condemnations fell through, and nothing was actually built on the property where the dispossessed owners' homes previously stood. Since the last homeowners were forced out and their houses torn down, the only regular users of the condemned land were a colony of feral cats.

That may now be in the process of changing. While I missed the news at the time, in January the Renaissance City Development Association (the private nonprofit development firm formerly known as the New London Development Corporation, which took ownership of the property after it was taken by eminent domain) sold the condemned land to a developer, which may plan to build new housing on it. The New London Day reported some details on January 19:

[A]ll the properties on the Fort Trumbull peninsula are slated for development.

Parcels on the peninsula, which also is home to Fort Trumbull State Park, have been vacant for almost 20 years. The land was cleared for development in a move by the city that led to the landmark 2005 U.S. Supreme Court decision, Kelo v. New London, about the use of eminent domain.

The land is owned and marketed by the city's development arm, the Renaissance City Development Association.

According to a development agreement between RCDA and RJ Development, parcels labeled 1A and 3C were sold for $500,000 and parcel 4A was sold for $1. The developer agreed to pay a $30,000 deposit to show its commitment.

The agreement states the projects on the property will primarily consist of, but will not be limited to, "the construction of residential units to be offered for market rate sale or rent/lease," with the associated parking and other improvements.

Parcels 3C (formerly part of a larger unit called Parcel 3) and 4A are the former sites of the residential properties condemned in the Kelo litigation. Susette Kelo's famous "little pink house," which became a nationally known symbol of the case, was on 4A.

A later story, published on February 3, provides some additional information, including that the low price of Parcel 4A was because of the "cost of remediating the remaining contamination of soil and groundwater." That contamination apparently developed during the long period when the parcel lay empty.

I have not been able to find any further information on what exactly RJ Development plans to build and when construction will be completed. The project is not listed on their website, which does however describe in detail another project they are doing in the area. I have contacted RJ Development to see if they are willing to provide any details. If I learn anything of interest, I will post it right here at the Volokh Conspiracy blog!

Since 2005, several efforts to redevelop the condemned land have fallen through. Hopefully, this one will succeed. But even if it does, I don't think it will somehow vindicate the Kelo condemnations. The new development initiative is obviously different from the badly misconceived plan that led to the use of eminent domain over twenty years ago. Moreover, by the time any construction is completed, the land will have lain unused (except by feral cats!) for nearly twenty years. From the standpoint of promoting development, that's an enormous waste.

The region would almost certainly have been better off economically if the original owners had been allowed to keep living there, paying property taxes, and contributing to the local economy. And that doesn't even consider the enormous pain and suffering the original development project inflicted on those who lost their homes (including some who sold them "voluntarily" as a result of harassment and the threat of eminent domain). I describe the history of the condemnation process and the harm it inflicted in much more detail in The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, my book about the Kelo case and its aftermath.

As I have previously emphasized in the book and elsewhere, the flaws in the New London development project don't necessarily prove that the Court got the Kelo decision wrong. Plenty of unjust and ill-conceived government policies are still legal. But there are in fact compelling reasons to reject the Court's reasoning, from the standpoint of both originalism and living constitutionalism. At least four current Supreme Court justices have expressed interest in revisiting and possibly overruling Kelo, and I hope it will indeed eventually be overruled. In the meantime, I will do what I can to find out what, if anything, is going to be built on the two parcels.

See the rest here:
Will There Finally be Some Development on the Land Condemned ... - Reason

Justice Antonin Scalia.

In my last post, I summarized what I learned from Justice John Paul Stevens' papers on Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings that are for a "public use." The papers were opened to the public earlier this week.

As noted in my previous post, one of the most interesting revelations in Stevens' files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia's dissent in its entirely (it's short!), and then offer some comments. Here's the dissent:

As JUSTICE O'CONNOR well explains, ante, at 1-2, 7-8 (dissenting opinion), the Court's decision today goes far beyond the holdings of our prior cases, and renders part of the Takings Clause a virtual nullity. Under the precedent set today, the Public Use requirement is effectively nonjusticiable. The political branches in the Federal Government and each State are left to administer it on the honor system.

It is hard to endure the Court's hymn of praise to "the best tradition of our federalist system," which permits "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways." Ante, at 19. Why is it appropriate to sing that song in a case involving a real-live constitutional text clearly designed to constrain "political processes"; but to leave it unsung in the many cases involving phantom rights that the Court has summoned up from nowhere? The same Court that could fashion an enforceable constitutional entitlement out of every individual's "'right to define"' his or her '"own concept of existence, of meaning, of the universe, and of the mystery of human life,"' Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)), today proclaims that the deeply felt "limits of [its] authority," ante, at 19, preclude it from enforcing a right that has been in the text of the Bill of Rights for more than two hundred years. The Court erects citadels in ultima Thule while leaving the Vandals unattended in Rome itself. This foolish disparity should not go unnoticed, nor (in the long run) uncorrected.

I respectfully dissent.

The Stevens files show that Scalia circulated this dissent on June 15, 2005, eight days before the Kelo decision was issued. He then withdrew it on June 21, after Justice Stevens removed the passages in his majority opinion that most incensed Scalia. Most notably, Stevens cut the references to "the best tradition of our federalist system" and allowing "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways."

For the most part, Justice Scalia's dissent echoes themes from Justice Sandra Day O'Connor's lead dissent, which he had already agreed to join. For example, both emphasize that the majority essentially gutted public use restrictions on takings.

The main distinctive point Scalia makes is the contrast between the majority's unwillingness to enforce an explicit enumerated constitutional right (the Public Use Clause of the Fifth Amendment) and its far greater solicitude for unenumerated "substantive due process" constitutional rights such as those enforced in Lawrence v. Texas (striking down laws banning same-sex sexual relations), and Planned Parenthood v. Casey (abortion). The latter was a longtime major concern of Scalia's (who forcefully dissented in both Lawrence and Casey).

It is interesting that Scalia withdrew the dissent after Stevens made changes to the wording of the majority. Although Stevens removed the specific phrases Scalia complained about, the substance of the opinion did not meaningfully change. It still treats the Public Use Clause much less favorably than various unenumerated rights. And it still cites federalism and diverse local needs as a justification for deferring to local authorities on public use issues:

Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs.

Ironically, just 17 days before Kelo was issued, and nine days before Scalia circulated his dissent, the Supreme Court issued its decision in Gonzales v. Raich, which held that Congress' power to regulate interstate commerce was so broad that it allowed it to ban the possession of medical marijuana that had never crossed state lines or been sold in any market, even within a state. Justice Stevens was the author of the majority opinion in Raich, just like in Kelo. Raich was a deeply flawed ruling that expanded federal power further than any previous Supreme Court decisions, and ran roughshod over state diversity and autonomy. There is an obvious tension between Stevens' paeans to state and local autonomy in Kelo and his endorsement of extraordinarily broad federal power in Raich.

Scalia could and should have called out Stevens and the four other justices who were in the majority in both Raich and Kelo on this contradiction. But he was ill-positioned to do so, because he himself had also voted for the federal government in Raich, albeit in a concurring opinion that used different reasoning than the majority. In my view, this was one of Scalia's worst opinions.

In sum, Scalia was right to highlight the flaws in Stevens' appeal to federalism and local diversity. But his own role in the Raich case prevented him from pointing out the full extent of the contradiction in the majority's position.

There are two interesting unanswered questions surrounding Scalia's unpublished dissent. First, it is not clear why Scalia withdrew the dissent in response to what were largely rhetorical revisions to the majority opinion that failed to address his substantive concerns. Second, as noted in my last post, it is hard to explain why Scaliathe Court's leading champion of originalismsaid virtually nothing about the original meaning of "public use" in his opinion, and chose not to join Justice Clarence Thomas' strong originalist dissent.

Despite withdrawing this dissent, Scalia still joined Justice O'Connor's forceful dissenting opinion. In later years, he continued to denounce the Kelo decision and predicted that it would one day be overruled (a prospect he welcomed). I hope he turns out to be the right on that last point.

Read more from the original source:
Justice Scalia's Unpublished Dissent in Kelo v. City of New London - Reason

A Pulaski County man accused of shooting at two federal officers will have to wait another day to learn his fate after a jury initially deadlocked on two of the four counts against him Thursday after deliberating for over four hours following two days of testimony.

Testimony grew heated Thursday as Jackie Davidson, 51, of Woodson, took the stand to explain his actions that day.

Davidson is charged with use of a deadly weapon to assault a federal law enforcement officer, attempted murder of a law enforcement officer and two counts of using, brandishing and discharging a firearm during a crime of violence, and could face 40 years or more in prison if convicted on all charges.

On Nov. 16, 2021, prosecutors say, Bureau of Alcohol, Tobacco, Firearms and Explosives Agent James O'Connor and Drug Enforcement Administration task force officer Johnny Sowell were conducting surveillance on a private road adjacent to Woodson Lateral Road and attempted to turn the black SUV they were in around after turning down a narrow, dead-end dirt road. They were driving back toward Woodson Lateral Road when Davidson confronted them with a shotgun and a pistol, firing at them as they passed by and striking the left rear bumper of the SUV.

In testimony on Wednesday, O'Connor and Sowell and described a chaotic scene as the two men fled down the narrow gravel lane as Sowell attempted to get out of the line of fire and to safety.

Davidson testified Thursday that he was sitting in a chair alongside Lee Street, not far from his residence, when he saw a dark-colored SUV drive past in the direction of his home. He said when he got up to walk in that direction, he saw the SUV come back in his direction, saying he had to jump out of the way to avoid getting hit and that he took shelter behind a tree.

Davidson said as the SUV drove back past him toward Woodson Lateral Road, he stepped out and fired once toward the ground with his shotgun, which then jammed. He said he then fired several warning shots. Davidson said a confrontation two days earlier with two men in a similar SUV had made him worried that the men had come back.

"When they drove at me I thought they were going to hit me," Davidson reiterated during cross examination by Assistant U.S. Attorney John Ray White. "I didn't mean to hit the car."

White asked about the near-violent confrontation two days earlier with the two men in the similar-looking SUV.

"You had a gun, correct?" White asked.

"I have a permit to carry one," Davidson said.

Challenging an earlier statement from Davidson that he didn't know the men from the earlier confrontation were armed, White asked about an interview after he was arrested in which Davidson had told an investigator the men were armed.

"A minute ago you said you did not know he had a gun," White said.

"I didn't know he had a gun until he pulled up and pulled it out of his waistband," Davidson said.

White asked if the men had been there to see Abelardo Gonzalez, a suspected methamphetamine trafficker who pleaded guilty to drug conspiracy and is awaiting sentencing in the case.

"I don't know who they was going to see," Davidson said. "I just happened to be standing there when they pulled up."

Asked if he and Gonzalez were friends, Davidson said his involvement with him was limited to trying to keep drug activity off of his property.

"We had an understanding that he wouldn't sell that stuff on my property," he said. "I put a stop to all that stuff out there."

White then asked Davidson if he was aware of drugs being sold by his cousin, Leon Davidson, out of the cousin's residence. As Molly Sullivan, one of Davidson's defense attorneys, objected, Davidson tried to continue.

"Let me answer it," he insisted. "Let me answer it."

U.S. District Judge Lee Rudofsky quieted Davidson as he called for a bench conference, then excused the jury to consider how to deal with the question of Davidson's knowledge of drug trafficking activity on Lee Street.

White defended his line of questioning, saying Davidson's statements regarding his understanding with Gonzalez had created an opening for prosecutors to delve further into his knowledge of the drug conspiracy itself. Davidson was not charged with drug crimes in the indictment.

White said Davidson was a "top five caller" to Gonzalez's cellphone, according to cellphone records obtained by investigators that were cited in obtaining a search warrant for Davidson's residence.

White also said that statements by a confidential source that led to the issuance of the search warrant had implicated Davidson in activities related to drug trafficking and raised a question as to whether Davidson was in the woods that day hunting or acting as a lookout.

"That's a very close question," Sullivan, argued, saying that could lead to more questions beyond the charged conduct.

"What if he asks, 'Did you know somebody who was selling drugs?'" Rudofsky asked.

Sullivan said such questions would be highly prejudicial "and they do tend to go toward other criminal acts."

Rudofsky said, however, that Davidson's answers could lead to other questions about possible uncharged conduct.

"What I'm trying help you avoid," Rudofsky said, "is where Mr. Davidson says he's invoking his Fifth Amendment and I tell him in front of the jury that he can't do that."

"If the questions go toward his involvement ... in other criminal activity, the government can't elicit questions of another crime for which he could take the Fifth for," Sullivan said.

Assistant U.S. Attorney Stephanie Mazzanti said she believed that Davidson had waived his Fifth Amendment right "by blurting out something completely nonresponsive to Mr. White's initial question."

"If he hadn't blurted that out could he still take the Fifth on those questions?" Rudofsky asked.

"I don't think he can," Mazzanti answered. "It still goes to intent and motive as to this case. He's waiving the Fifth as to intent and motive in this case."

"I just want to make sure," Rudofsky said. "If there's a conviction you're going to have to defend it up at the 8th Circuit."

After Davidson's testimony, Sullivan and her co-counsel, Cheryl Barnard, rested their case. Just before 4:30 p.m., after giving the jury final instructions, Rudofsky sent the eight men and four women to the jury room to begin deliberations. At 8 p.m., the jury sent the judge a note saying it had reached a decision on two counts but had deadlocked on the other two counts and asked if it could submit its verdicts "as is" or if it would have to continue to deliberate on the remaining two counts.

At 9 p.m., after the jury had been in deliberations for just over 4 hours, Rudofsky sent the jury home, telling them to return today at noon to continue.

"If anyone tries to talk to you about this case, walk away and let me know immediately," Rudofsky cautioned the jurors. He also instructed them to avoid any news reports on the trial until after a verdict is reached and the jury is released.

Here is the original post:
Jurors to continue deliberations in trial for Woodson man accused of ... - Northwest Arkansas Democrat-Gazette

Hollywood's post-war period was fraught with rising tension in social and professional circles, a time of paranoia and skepticism regarding one's colleagues, friends, and even loved ones. As the Cold War heated up, with highly publicized witch hunts claiming a number of victims via the Red Scare, the film industry became a national stage for making an example of those who'd dare sympathize with the Communist ideology. But during this time, a number of men and women blazed a defiant trail through a contentious environment, maintaining integrity and self-respect under persecutory circumstances. Released in 1952, the Gary Cooper-starring western, High Noon, found itself caught up in this political and cultural whirlwind due to the personal history of its screenwriter, Carl Foreman.

With a past that ultimately ran afoul of Hollywood's status quo at the time, Foreman's ideological leanings put him in the cross-hairs of controversy. A microcosmic film of its era, displaying themes and social undertones wholly relevant to the societal dynamics surrounding it, High Noon remains a shining example of art imitating life, and eventually for Foreman, an allegorical work of fiction that would reflect his trajectory in Hollywood.

RELATED: 10 Best Western Movies of All Time, According to Rotten Tomatoes

Set in 1898 in the small western town of Hadleyville, High Noon tells the story of Will Kane (Gary Cooper). Having just retired as the town's Marshall and tied the knot with Amy (Grace Kelly), Kane's plans for a peaceful future come to a screeching halt as an old foe from his past suddenly resurfaces. Frank Miller (Ian MacDonald), whom Kane sent to prison years before, has been released and is rumored to be on his way to Hadleyville via the noon train. The outlaw's impending arrival sends the town's residents into a frenzy, with many either opting to flee altogether or abandon Kane as he attempts to enlist help.

As the narrative unfolds in real-time, and the walls of fate close in, Kane wrestles with a moral dilemma, forced to choose between self-preservation and personal integrity. While the easy choice would simply be to get out of dodge and avoid the consequences of his past, albeit at the expense of the safety of those in town, the retired Marshal decides to stay and face the oncoming threat alone. Outnumbered and with the odds stacked against him, Kane's stance in the face of overwhelming odds proves a perfect parable for Hollywood players who, at the time, were compelled to inform on their friends and colleagues or risk losing their careers.

Born and raised in Chicago, Carl Foreman eventually made his way to Hollywood and struggled as a writer in the 1930s. After training with the League of American Writers, an organization founded by Communists in 1935, the young Foreman worked as a script doctor for MGM. While working on U.S. Army films during World War Two, he met and befriended fellow film lover Stanley Kramer, and the two men pursued a vision of filmmaking independent of major studios. Kramer founded his own company, Screen Plays Incorporated (later Stanley Kramer Productions), and he and Foreman soon went to work on their own projects.

Finding success with films like Champion and Home of the Brave, Kramer and Foreman developed a knack for good writing and efficient filmmaking on shoestring budgets. After signing director Fred Zinnemann to a three-picture deal, next on their slate was High Noon with Zinnemann at the helm. While developing the film's script, taking inspiration from Hollywood's increasing tendency to attack and oust political dissidents, Foreman eventually realized that his evolving narrative bore similarities to John W. Cunningham's short story, The Tin Star. Presumably, to avoid accusations of plagiarism, the screenwriter bought the rights to Cunningham's story and proceeded with crafting his own.

The script for High Noon generated buzz in Hollywood, and the combined power of Stanley Kramer's producing talents and Carl Foreman's writing secured funding and star power. Gary Cooper, then an aging but highly respected actor who recognized a good script when he read one, accepted the role of Will Kane for $100,000. After rounding out the cast, which included a then-21-year-old Grace Kelly, shooting for the film commenced in 1951. But as production was underway, Foreman suddenly found himself in the throes of a political witch hunt, and as a result, at odds with his friend and creative ally, Kramer.

By 1951, the House of Un-American Activities Committee, a congressional overseer dedicated to investigating political dissidents in the United States, was hard at work weeding out individuals it considered threats to national security. As High Noon rolled cameras, Carl Foreman received a subpoena by the committee, and as a disillusioned former member of the Communist Party, would be expected to testify and answer questions about his political affiliations. The timing couldn't have been more ironic in considering High Noon's socially-conscious subtext about mob psychology, and one man's efforts to stand in its way.

Realizing he'd be under a harsh spotlight, Foreman told his colleagues about the subpoena. While he had support from Fred Zinnemann and Gary Cooper, the latter of whom was a conservative Republican and even offered to testify on Foreman's behalf, it was Stanley Kramer, a staunch liberal, who showed hesitance to back his friend. Foreman planned on using the Fifth Amendment to avoid answering questions altogether, a strategy Kramer feared would backfire and make his friend appear suspicious. The two men were also quarreling over High Noon, and Foreman ultimately inserted bits of his current dilemma into the film's narrative. He recalled, "A lot of the dialogue was almost the dialogue that I was hearing from people and even in the company. You could walk down the street and see friends of yours recognize you, turn, and walk the other way.

As High Noon entered its second week of production, the decision was made to have Foreman resign and forfeit his stock holdings in the production company. But a short time later, the decision was reversed due to legal formalities (Foreman never signed an official contract that would defer a portion of his salary). Between a rock and a hard place, Kramer begrudgingly brought Foreman back on board as writer and associate producer. Though their relationship would never be the same, they agreed to wait 60 days and let the situation play out. Foreman implored Kramer, "Let's fight as long as we can."

On September 24, 1951, Carl Foreman testified before a committee in Los Angeles. Donning a suit and what he described as "a very sincere tie," he denied being a Communist and invoked the Fifth Amendment when asked about political affiliations prior to 1950. While declining to slander the Communist Party, he did confess he'd report anyone he suspected of committing treason. Refusing to buckle under pressure, Foreman's testimony lasted an hour. The following day, however, he discovered that he'd once again been removed from High Noon's production and that his colleagues threw him under the bus. Though he retained credit for his screenplay, Foreman lost his associate producer credit and ultimately received a $150,000 settlement.

Released in 1952, High Noon was a hit with critics and audiences. While not loved by some (John Wayne reportedly hated the film and labeled it "un-American"), it was nominated for seven Oscars, including Best Screenplay for Carl Foreman. The film would take home four awards, one of which was Gary Cooper's second for Best Actor. Ironically, John Wayne accepted the award on his friend's behalf and graciously noted, "Im glad to see that theyre giving this to a man who is not only most deserving, but has conducted himself throughout the years in a manner we can all be proud of." Though Wayne disliked the film, his statement commending Gary Cooper couldn't have been more spot-on, considering that the actor was arguably Carl Foreman's greatest ally throughout the ordeal involving HUAC. When Foreman later expressed interest in starting his own company, Cooper even offered to invest in it until intense pressure and public scrutiny convinced him otherwise.

Just months after being blacklisted, Carl Foreman moved to London. Despite his controversial status, he continued to work throughout the years, famously co-writing 1957's The Bridge on the River Kwai along with fellow blacklisted screenwriter Michael Wilson and the author of the film's source novel, Pierre Boulle. The epic war film won seven Oscars, including Best Picture and Best Screenplay, although Foreman and Wilson's controversial status in Hollywood meant they wouldn't receive awards for their work. But on June 25, 1984, the night before Foreman died of a brain tumor, the Writers Guild of America announced it would restore Foreman and Wilson's writing credits. Speaking on her husband's behalf at a ceremony the following year, Michael Wilson's widow said, I trust that you younger men and women will shelter the mavericks and dissenters in your ranks and protect their right to work. The nation will have need of them if it is to survive as an open society.

See the article here:
The Red Scare Led to One of the Greatest Westerns of All Time - Collider

Power to the People is a column by Donald M. Kreis, New Hampshires Consumer Advocate. Kreis and his staff of four represent the interests of residential utility customers before the NH Public Utilities Commission and elsewhere.

By Donald M. Kreis, Power to the People

Remember the time a famous architect secretly designed a public housing project, and then blew the place up because the complex was not built to his specifications?

Of course you dont. It didnt happen.

If the story sounds familiar its probably because you read The Fountainhead by Ayn Rand, likely as a brooding and disaffected teenager. Architect Howard Roarks act of violent civil disobedience is the climax of Rands epic novel about individualism thwarted by a society committed to mediocrity while slouching toward socialism.

Maybe thats why it was the Arthur L. Irving Institute for Energy and Society at Dartmouth College, and not the schools English Department, that sponsored the lecture I heard recently about pressing the teachings of Ayn Rand into service in quest of doing something about climate change.

Calling his talk Ayn Rands Climate Moment, Rutgers University Anthropologist David McDermott Hughes used his Dartmouth gig to propose that climate activists find common ground with people who tend to revere the creator of The Fountainhead. He was referring, of course, to New Hampshires libertarian community.

Hughes has been poking around New Hampshire of late, conducting what he calls speculative ethnography. His speculation has to do with the common ground Hughes envisions between climate activists (particularly the four who were convicted after a jury trial in March of trespassing at the coal-fired Merrimack Station in Bow) and the states ever-more-visible cadre of libertarians.

The anthropologist is not talking about the libertarians in the Legislature. Hughes has no use for the ceaseless contradictions implicit in being elected to a lawmaking body when you basically think we shouldnt have a government.

Instead, Hughes is talking about the kind of grassroots libertarian who does things like the antics in Keene nine years ago. Some libertarian activists figured out where the parking enforcement officers would be so they could walk a few steps ahead of them, feed quarters into expired parking meters, and thus thwart the issuance of parking tickets and with it the muscular exercise of state authority.

According to Hughes, stunts like that are prefigurative. Social scientist Carl Boggs coined the phrase prefigurative politics to describe political acts that are self-executing i.e., as Hughes said, you achieve the goal immediately by doing the thing as opposed, say, to waiting for the Legislature or some regulatory agency to agree with you.

What sort of prefigurative politics does Hughes have in mind when it comes to decarbonization? Exactly the thing that led to the trespassing convictions already mentioned. In that case it involved physically preventing a train from getting to Merrimack Station so it could drop off a load of coal to be burned to generate electricity.

And why, you may be wondering, does this anthropologist care about what libertarians would make of such exploits? As Hughes explained at the Dartmouth lecture, and also in the Boston Review recently, its because of jury nullification.

Juries are the last bastion of true, unimpeded democracy. In a felony case, the lawyers present evidence of what happened, and the judge provides instructions as to the statute that prohibits some kind of behavior (e.g., trespassing). But then the jury can do whatever it wants. In other words, the jury can nullify law with which it disagrees.

So, if the jury thinks it would be unjust to convict the defendant say, because jurors believe it was righteous and even courageous for someone to block the delivery of coal to Merrimack Station then the jury can return a not guilty verdict. And that would be the end of the case, thanks to the no double jeopardy clause of the Fifth Amendment.

Hughes figures that the kind of true libertarian who would run around Keene dispensing quarters in an effort to thwart the local parking authorities would also be amenable to jury nullification of this sort. He stressed that he was under no illusions when it comes to libertarians and climate change.

Rather, according to the anthropologist, a dyed-in-the-wool New Hampshire libertarian would see Merrimack Station and the railway that delivers coal there as, essentially, instrumentalities of the state given the various subsidies and bailouts granted to them. So, Hughes reasons, such a juror would deem the applicable law baloney and vote to acquit.

Thus, the hypothetical libertarian juror finds common purpose with the climate activists. And keep in mind that if only one juror refuses to convict, the defendant is found not guilty and goes home scot-free.

Lets cut to the chase. Why would ratepayers, and thus a ratepayer advocate like me, care?

Because the anthropologists hypothesis is that a de facto alliance between libertarians and climate activists could really shut down every last fossil fuel electricity generator, including those that use natural gas. That, he thinks, is what can happen if this jury nullification thing catches on and people figure out they can commit acts of civil disobedience at places like Merrimack Station with no negative consequences to them.

Thus, Hughes foresees a massive direct-action movement of the type that toppled the Berlin Wall in 1989 at the end of the Cold War. The idea, he says, is to make fossil fuels unprotectable.

I am skeptical. For one thing, the New Hampshire Supreme Court made clear in 2014 that while a jurys power to acquit a criminal defendant for any reason it likes is undisputed, judges are not required to inform jurors of this right.

However, people who care about energy and that should be all of us ought to take note of this argument now that it has been made so publicly in New Hampshire. It suggests the extreme lengths that climate activists are willing to go in the face of what they perceive as the systems intransigence.

Hughes is under no illusions about libertarians; he describes his proposed alliance with them a strategy of last resort. According to Hughes, its not the 1970s anymore, we have lost our opportunity for slow and methodical solutions to climate change, and we have to come up with a solution as risky as the crisis.

After hearing Hughess lecture, I am no longer puzzled by civil disobedience at or near Merrimack Station. The activists are not trying to change anyones mind; theyre doing prefigurative politics because they aim to get activities of this sort to catch on until fossil fuel facilities crumble just like the Berlin Wall did.

Do they care about what judges, or legislators, or utility commissioners, or journalists think of that? No, they do not.

That sends a chill down my spine, and not just because I am a lawyer who is part of state government. Is the social compact really that close to fraying, because so many people are that frustrated by government inaction? If so, thats bad for ratepayers.

See the original post here:
The Ghost of Ayn Rand as a Climate Activist? - InDepthNH.org