The power of government at every level is wide, intrusive, and growing. In the last 18 months, cloaked in a doctrine of necessity justified by a pandemic, the expansion of governmental power over our lives has been unprecedented and unchallengeable. Should it be restrained? Can it be?
Absent a wholesale turn-around in how government officialdom views their role in American society we are seemingly left with an issue-by-issue consideration of what restraints our Constitution imposes on runaway government. Fortunately, we see some light shining through from recent decisions of the United States Supreme Court.
Let’s talk a little about property rights. A recent decision not only gives insight into an evolution taking place in the high court’s recognition of property rights, but also as to the nature and scope of such rights.
In Cedar Point Nursery v Victoria Hassid et. al. (2021), an opinion written by Chief Justice John Roberts, challenge was made to a California regulation promulgated by the State Agricultural Labor Relations Board. The regulation gave union organizers access to private property owned by farmers during non-work hours for three hours a day for 120 days a year. Two farmers sued. They argued granting so much unfettered access was a taking of private property for public use. The Supreme Court in a 6-3 decision, overruled our Ninth Circuit Court of Appeals (again), and found that under both the Fifth and Fourteenth Amendments such a regulation is a taking and is unconstitutional unless the property owners are compensated.
The Takings Clause of the Fifth Amendment provides “[Nor] shall private property be taken for public use without just compensation.”
Chief Justice Roberts wrote “Whenever a regulation results in the physical appropriation of property, a per se taking has occurred.” And to arguments that temporary access is not a taking of property, he responded, “The fact that a right to take access is exercised only from time to time does not make it any less a physical taking.”
Roberts also wrote, “The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom.” He went on to quote John Adams who “tersely put it,” thus, “[property] must be secured or liberty cannot exist.” Citing previous decisions, the Chief Justice emphasized that the Supreme Court had repeatedly concluded that the protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”
And isn’t that the concern. There is no absence of government, local, state and national, nor of office holders such as our California’s governor and legislature that are eager to shape our lives to the way they want in ways that are in direct contradiction to what we wish for ourselves.
Of particular importance is that Roberts express the “property” is not just one right, but rather a “bundle of rights” which includes the right to exclude others from private property. He states, “The right to exclude is “one of the most treasured rights of property ownership.” And it is fundamental. Citing Blackstone, the idea of property entails, “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
Roberts reiterated that Supreme Court precedent recognizes the right to exclude is “universally held to be a fundamental element of the property right” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”
Of course, this is the opposite of socialism and is frowned on by all those who wish to govern us and all we own in accordance with what they think best for us and all those “other individuals”.
Another recent cases confirmed the respect the Supreme Court is once again granting “property rights.”
In Caniglia v Strom, (2021), the Supreme Court held the police violated property rights by entering a home to confiscate weapons. In the Rhode Island case, a wife called the police to do a welfare check on her husband. The night before they had argued. The husband had placed a handgun on a table and proclaimed she ought to shoot him and end his misery. She declined his invitation, instead spending the night in a hotel. She called the police the next morning when the husband failed to answer the phone.
When the police arrived, they were met at the door by the husband and were informed he was not suicidal and posed no danger to himself or others. Nevertheless, they sent him to a hospital for a psychiatric evaluation. They agreed not to take his guns in his absence. Of course, after he left, they did just that. They entered the man’s home without a warrant, without consent, without any pending emergency and seized his guns and refused to return them. He had to sue.
The Court began by emphasizing that it has consistently held that the Constitution’s strongest protection against search and seizure of property applies to one’s home. In the times leading up to the American Revolution, British agents could, anytime they chose, enter a person’s home and leave it ransacked. They didn’t need a reason. Understandably, the framers of the Constitution had this practice in mind when they drafted the Fourth and Fifth Amendments. Justice John Paul Stevens in 1980 said, “The Fourth Amendment has drawn a firm line at the entrance to the house.”
The U.S. Court of Appeals attempted to carve out an exception to this hallowed principle, finding justification for the entry into the private home and the seizure of weapons in a “community caretaking,” function of the police. The Supreme Court was having none of it.
While the opinion by Justice Clarence Thomas, recognized the principle that since times predating the Constitution the police have had the right to enter a private home without a warrant in a legitimate emergency to render aide, his opinion refused to extend the power any further. In this case, there was no active emergency, no imminent threat, no one injured or in need of aide. As such the police were not entitled to enter without meeting the requirement that a judge review the situation and issue a warrant in compliance with Due Process of law.
Were that not the case, any government agent who wished to peek inside a private home could enter with only the blithest of excuse as a “community caretaker.”
It is good the Supreme Court still values what our framers valued in not allowing the government to enter a person’s property in a non-emergency without it being properly passed on by a neutral magistrate.
The Supreme Court is holding the line on property rights. And as we will see in future posts, they are also doing so in other areas. As they must.
May they continue to do so.
For other writings by Phil Cline, visit philcline.com