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Oh Madison, Where art thou?

By J. David Breemer
web posted July 4, 2005

James MadisonIn 1782, James Madison wrote: "Government is instituted to protect property of every sort; as well that which lies in various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his."

Madison was hardly alone in these views. The other Framers of this nation also held private property rights in such reverence that they too believed that government was legitimate and worth instituting, only to the extent that it actively protected private property.

In just one week, the United States Supreme Court pummeled the Framers' cherished ideals not once, but twice, in property rights decisions that squarely put government ahead of the governed.

The Framers understood that almost all personal liberties depend on security in property. You cannot have freedom of religion if you cannot build and keep a church; free expression is repressed if you live in fear for your place of work; a free press cannot exist if you cannot own the tools of the trade and a place to use them.

As Virginian Arthur Lee reminded his fellow colonials on the eve of the Revolution, "the right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty."

Upon the signing of the Constitution, John Adams reiterated that "‘property must be secured or liberty cannot exist.' "

When Madison drafted the Bill of Rights to make clear that individual freedoms trumped even the federal government's new powers, he included provisions specifically protecting private property. Chief among these is the Takings Clause of the Fifth Amendment, which states: "Nor shall private property be taken for public use without just compensation."

For more that a century and a half after the Constitution's adoption, the Supreme Court followed in the footsteps of the Framers when it came to preserving private property.

Like the Framers, the early Court considered it self-evident that "in any society the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government."

The Court vigorously enforced the Takings Clause, holding that the government could only take property when it was actually put to use by the public, requiring compensation for excessive regulatory intrusions, and considering property rights disputes worthy of at least the same federal judicial attention as disputes implicating other Constitutional protections.

Unfortunately, today's Supreme Court is cut from a far different cloth. This was made clear in last week's property decisions.

In one decision involving homeowners in New London, Conn., the Court allowed the government to confiscate perfectly good and occupied homes simply because it wanted to give the property to a corporation that claimed it could make the property more valuable and so, put more tax dollars in the government coffer.

To do so, the Court effectively rewrote Madison's Takings Clause, replacing the words "for public use" – designed to allow takings only when that property was for actual use by the public – with the phrase "public purpose," which allows government to take property whenever it thinks its a good idea. The Constitution had to be altered, and the property owners' homes destroyed, to serve the "ever evolving needs of society."

In a second decision regarding property in San Francisco, the Court held that individuals can no longer sue in federal courts to stop illegitimate takings.

According to the decision, those trying to prevent state and city governments from taking their property may not appeal to the federal courts for protection, but must instead go hat in hand to the state's own courts.

Unlike those claiming violations of free speech rights, the right to be free from unreasonable searches, or any other constitutional liberty, those seeking to protect their property are shut out of federal courthouses.

Nothing in the Court's precedent or in the text of the Takings Clause mandated these decisions.

In fact, in each case, such considerations permitted the opposite results, results that protected, rather than denigrated private property. Since the Court nevertheless chose to cut back on property rights, it is hard to escape the conclusion that the Court simply does not believe such rights have an important role in checking government power and preserving liberty.

Indeed, the Court's decisions are disturbingly candid about its desire to make private property subservient to the whim of government decision-making.

This deferential view of the government's power to appropriate property without meaningful constitutional restraint has little in common with the understanding of the Framers.

The Court is, in fact, very close to having more in common with Lenin, when it comes to private property, than it does with Madison. And Madison's ideological heirs may have legitimate cause to wonder whether the Framers made a mistake in creating a powerful and autonomous judicial branch.

J. David Breemer is an attorney with Pacific Legal Foundation, a nonprofit public interest legal organization dedicated to defending property rights in the courts; the Foundation filed briefs in all the property rights cases heard by the Court this term.

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