Posted on 08/19/2005 8:41:48 PM PDT by FReethesheeples
A Supreme Property Rights Disaster In The Making More Kelo on the SCOTUS horizon?... [James S. Burling] 8/15/05
After a term marked by the Supreme Court’s utter contempt for property rights, those of us who happen to think there is something special about allowing old widows to keep their homes were not prepared for an even more bitter defeat. Yet, that is what President Bush handed us with the nomination of John Roberts.
The battle over property rights is not a conservative versus liberal thing. It’s more a struggle between those who believe in the power of the state to dictate how we get to use our land and homes versus those of us who believe that the state has no business destroying our right to make reasonable use of our property.
Guest Contributor James S. Burling James S. Burling is a Principal Attorney at Pacific Legal Foundation [go to Guest index]
That is because when government can go about destroying with impunity our ability to use property, none of our liberties can be safe.
As James Madison put it, “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”
This spring, the Court handed down a series of cases that stand for the proposition that today in America, no man (or widow) is safe.
In a case out of Hawaii, the Court held that courts had to defer to a legislative scheme to reduce gas prices by controlling the rents paid by gas stations--even though it was proven in federal court that the scheme would have no such economic effect.
In a case out of San Francisco, the Court held that landowners may no longer have their day in federal court when a local government has violated their rights guaranteed by the Takings Clause of the Fifth Amendment. San Francisco regularly tells hotel owners that they must pay a “fee” of hundreds of thousands of dollars for permission to rent existing rooms to tourists.
Now landowners can no longer go to federal court to argue that bizarre and extortionate policy violates the federal constitution’s proscription against “taking without just compensation.”
But the most notorious decision of this term was the 5 to 4 Kelo decision that upheld the raw power of the City of New London, Connecticut, to destroy a neighborhood of homes, including that of an 87 year old widow who had lived in her home since 1918.
So long as a “public purpose” is met, in this case by providing some aesthetic value to a large corporate headquarters project, the Court will not interfere. The language in the Constitution that property can be taken only for “public use” were just words to the Courts–words that can be shaped and reshaped to meet the needs of the state.
But if an 87 year old Connecticut widow can have her property rights destroyed, how about dozens of elderly landowners, many of them widows and widowers, near Lake Tahoe?
That is where Judge Roberts comes in.
In a notorious case in 2002, John Roberts, then a private attorney, argued that several dozen mostly elderly and middle class landowners should not receive a penny in compensation even after a local land use agency had prohibited all use of their property near Lake Tahoe for nearly 30 years.
In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation–in a way that tilts almost every time in the government’s favor. Unfortunately for the landowners, the Court agreed with him.
Of course, one might argue, Roberts was only doing what he was being paid to do as a high-priced lawyer to represent his client. But why then did he take the case for a “substantially reduced” fee as the chief of the Tahoe Regional Planning Agency admits?
More disturbingly, Robert’s representation of the agency is entirely consistent with the statist philosophy he expressed in a 1978 Harvard Law Review article on land use law. He argued against clear rules that would put boundaries on government power over property in favor of essentially the same government-friendly “balancing test” that he advocated for in the Lake Tahoe case.
Even more troubling, he proposed a scheme that would deny money to landowners whose property is taken, using the sort of rhetoric that reminds us of Bill Clinton’s prevarications over the meaning of the word “is.” Roberts wrote: “The very terms of the fifth amendment, furthermore, are sufficiently flexible to accommodate changing notions of what compensation is ‘just.’”
Put another way, what we have here is not the “living constitution” so derided by strict constructionists, but a “mutating virus” infinitely malleable in the service of the state, and undeniably threatening to the rights of property owners. Justice O’Connor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind. tOR
copyright 2005 Acton Institute
Roberts is looking more and more like Scalia with each passing day.
Just great.
Are you basing that on other cases you agree with? Or Trust simply because he is a Bush nominee?
I'm basing it on most of the news I have heard about him including his position on other issues such as affirmative action and abortion.
Like I said before, you aren't going to agree 100% with anyone on anything.
His argument was cited several times elsewhere in the threads, and the legal citation is is Linked herein above.
Its called a "Regulatory Taking" when a normal use of property occurs through zoing or other restricitve actions by Public or State agency.
Its called a "Regulatory Taking" when a restriction on a normal use of property occurs through zoing or other restricitve actions by Public or State agency.
Acton Institute, and Pacific Legal Institute and the two publications which published this are NOT "Tools of the Left."
They are highly reputable and credible conservative-libertarian policy and legal think tanks as anyone whois informed on their activities will tell you.
;-)
We all have our list of priorities.
Yes, and this was a 36 month moratorium on building and the issue was were the landowners required to be compensated for such a moratorium. The Bush administration argued for the same side as Roberts. Roberts actually took the case as a favor to a friend who was a law professor at Chicago University. The professor was apparently too busy and asked Roberts to plea the case before the Supreme Court. Boston Globe did a story on this and other environmental cases that Roberts was involved in and paint a different picture of Roberts, but offers a reasonably balanced view considering the source. Roberts actually rulings, which is probably a more accurate views of his true beliegs, show Roberts is very supportive of property rights.
Well, they are conservative but whether they are tools of the left is something upon which I am reserving judgement.<p.
Thanks for chiming in here, I always look to see what you have to say on legal issues.
"One thing we do know about Tahoe is that it was a "takings case" and the landowner lost and Roberts, --- & the government, --- won."
Do we really know that. The land use case in Tahoe started 30 years ago according to the article, but Roberts did not come into this until 2002.
Also, I checked your link and the article there had links to the Hawaii case, the San Francisco case and the Kelo case, but no link to the case in Tahoe. I would like to know how this case came about 30 years ago before I make any final decisions. I will keep this article in mind in the mean time.
Regretably, I don't trust GWB on much of anything anymore. He has proved all his critics from the right in 1999 correct.
Ah..a fairly basic "tradgedy of the commons". That said, if it is in the interest of the community to diminish the people's ability to use their land, there should be a corresponding tendency for compensation.
There should, but in practice it gets very complicated. Just read the case in question. If that doesn't give you a headache, nothing well. I am a lawyer, and it gave me a headache, and I am used to the cadence of the prose. Sometimes moratoria enhance land values rather than diminish them, for example. The land market is so wonderfully complex. That is why I love it so, and the intersection of that with the law, sends me sometimes into ecstasy. Nothing out there is better.
Without context, this is a truism...else the Constitution would have spelled it out, instead of using a subjective term.
As example, would "just" be to pay for the property at previous uninformed purchase price (Even if bought 60 years ago)? At price plus 10%? At new market rates? At double rates? At replacement cost? At the value of what the land will be used for by the government?
What a jerk
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