SCOTUS Defends Property Rights, but Raises Constitutional Questions

The current Supreme Court is a vigorous defender of property rights. But it sometimes goes beyond what an accurate reading of the Constitution can justify.
SCOTUS Defends Property Rights, but Raises Constitutional Questions
U.S. Supreme Court in Washington on March 22, 2024. (Madalina Vasiliu/The Epoch Times)
Rob Natelson
The current Supreme Court of the United States (SCOTUS) is a vigorous defender of property rights. In general, I like that. But as I observed in an Epoch Times column last year, the court sometimes goes beyond what an accurate reading of the Constitution can justify.

The Fifth Amendment is part of the Bill of Rights.

It reads, in part, “Nor shall private property be taken for public use, without just compensation.”

This language is called the “takings clause.” On April 12, the court handed down a new takings clause decision.

The case was Sheetz v. County of El Dorado. The court was unanimous. Justice Amy Coney Barrett wrote the opinion.

The Facts

George Sheetz applied for a permit to build a small house in rural California. The county charged him $23,000 for the permit, supposedly to offset the cost of relieving increased traffic congestion due to the addition of the house.
Mr. Sheetz claimed the fee was an unconstitutional “taking.” The California courts ruled that the takings clause’s restrictions on impact fees applied to charges imposed only by administrative agencies rather than by legislative action. This charge was imposed by legislative action.

How SCOTUS Ruled

SCOTUS ruled that the takings clause applies to all government actions, not merely administrative ones. Justice Barrett noted that when the Constitution was written, most takings resulted from legislative acts rather than administrative decisions. She also observed that the takings clause is written in the passive voice: Its restrictions are not limited to any particular branch of government.

That ruling is clearly correct. In fact, by the time the case reached the Supreme Court, even the lawyers for the county had conceded the point.

There were also some concurring opinions. They distinguished the ruling from other, unresolved issues.

Although the central ruling of the Sheetz case was correct, the decision still raises some troubling constitutional questions. I’ll address those in a moment.

Summarizing Takings Law

Justice Barrett’s opinion contains a readable survey of the court’s convoluted “takings” law. I predict that her opinion will be reproduced in law school casebooks for students. Her survey can be summarized in five points:

First, if the government physically intrudes onto someone’s land or otherwise interferes with possession, the government is guilty of a “per se taking.” It must pay the owner the fair market value of any loss.

Second, if the government adopts a rule restricting the owner’s use, it must compensate if the rule does not “substantially advance legitimate state interests.” The requirement that the rule “substantially advance legitimate state interests” is not difficult to meet. But it is more difficult than the loose standard the courts apply to most other economic regulations.

Third, even if a regulation “substantially advances legitimate state interests,” the government still must pay if it “denies [the] owner economically viable use of his land.” Put another way, if the owner still has reasonable options for the land, no compensation is due. But if fair market value is wiped out, then government must pay. This is called a “regulatory taking.”

Fourth, a government may require a building permit, and it may impose conditions on the permit. But the conditions must be connected to the government’s “land use interests.” Thus, if a proposed development will increase traffic, then the government may impose a fee for the cost of addressing the increased traffic. But the government may not require the landowner to allow the government to use the land for its annual holiday party. Holding a party is not a “land-use interest.”

Fifth, even if the fees or other conditions are related to the government’s land use interests, the cost still must be “roughly proportional” to the burden the development imposes. The court did not say so, but a $23,000 fee seems excessive for addressing traffic arising from a small house in a rural area.

Troubling Questions

The court ruled that the takings clause applies to all government agencies because its wording is not limited to any particular branch of government. In fact, this is true of most of the Bill of Rights.
However, the First Amendment—protecting freedom of religion, speech, and so forth—is different. It is limited explicitly to one branch of government: “Congress shall make no law ...” As I explain in my book “The Original Constitution: What It Actually Said and Meant,” the founders may have had good reasons to limit the First Amendment to Congress. So why does SCOTUS apply it to all branches of government and not just to Congress?

Another troubling question: The takings clause clearly requires compensation when the government condemns land by eminent domain. But why does it require compensation for excessive regulation? After all, the clause says “take,” not “regulate.”

The difference between taking and regulation isn’t relevant in the Sheetz case: An excessive fee is a taking as well as a regulation. But in many other cases, the contested government action is just a rule—something like, “You can’t build a factory in this zone.”

I’ve been all over the founding era record for more than 30 years, and I’ve never found any evidence that the takings clause was intended to limit regulations. Maybe the clause should be amended. But until it is, we should respect its wording.

Still another troubling question: The Fifth Amendment was intended to apply to the federal government—not to the states. In fact, when considering the Bill of Rights, Congress made the deliberate decision to not apply any of it to the states. So why is SCOTUS—as in the Sheetz case—using it to restrict the states and their local governments?

The court’s conventional answer is that the 14th Amendment prohibits states from denying “due process of law” and that this phrase contains other rights, including free speech, freedom of religion, and protection against uncompensated takings.

But this distorts the Constitution’s text. And it is pure invention, because when both the Constitution and the 14th Amendment were adopted, “due process of law” meant only that the government must follow preexisting procedures when it goes against someone. It can’t make up the rules as it goes along.

No one in the Sheetz case claimed that the county was making up rules as it went along. It was following preexisting procedures.

‘Privileges or Immunities?’

As I explained in a 2021 Epoch Times column, many writers (including Justice Clarence Thomas)—recognizing that the “due process” theory is nonsense—contend nevertheless that the 14th Amendment applies the Bill of Rights (including the takings clause) to state and local governments because the 14th Amendment prohibits states from abridging the “privileges or immunities of citizens.”
This is a better answer, but still weak. For one thing, it is at odds with how the original Constitution uses the terms “privileges” and “immunities.” And as far as I can tell, it has no support in the records of the state legislatures that ratified the 14th Amendment.

Justice Barrett’s opinion in Sheetz fudged the issue. She wrote merely that “the Fourteenth Amendment ... incorporates the Takings Clause against the States.” She didn’t tell us whether this was true because of “due process” or “privileges or immunities.”

Perhaps SCOTUS is moving away from the very weak “due process” rationale to the somewhat less weak “privileges or immunities” rationale.

A Parting Shot

I found Justice Barrett’s politically correct use of “her” as a generic pronoun to be distracting and jejune. It is only slightly better than the barbarism of using “they” as a singular pronoun.

There is nothing wrong with the generic “he.” As my wife, Betty, once observed, it is a feature of the English language that while women have their own pronouns, men must share theirs.

I’m willing to accept that, and I think the court should, too.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”
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