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John Roberts: A supreme property rights disaster in the making

By James S. Burling
web posted August 15, 2005

John RobertsAfter 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.

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.

James Burling is a principal attorney with Pacific Legal Foundation, the nation's oldest and largest public interest legal organization dedicated to defending private property rights.


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