The Senate on Monday opened hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court. Meanwhile, the eight sitting justices heard arguments in a case that highlights why Judge Gorsuch would be a valuable addition to the panel.
The case involves a dispute out of Wisconsin that offers the court the opportunity to strengthen property rights protections and limit the regulatory state’s ability to impose arbitrary rules that devalue private property.
Embedded in the Bill of Rights are provisions acknowledging the nexus between property rights and individual freedom. The Fifth Amendment not only prohibits the government from depriving American citizens of “life, liberty or property, without due process,” it also proscribes the government from taking property “for public use, without just compensation.”
The infamous Kelo v. New London case in 2005 blew a huge hole in that constitutional protection. “Public use” had typically been interpreted to mean that the government could seize land to build something like a road, school or firehouse. In Kelo, however, the liberal justices — joined by Anthony Kennedy — sanctioned the use of eminent domain to confiscate a woman’s home and turn it over to another private owner for the purposes of generating more tax dollars through redevelopment.
In dissent, Justice Sandra Day O’Connor got it right. The decision, she wrote, obliterates “any distinction between private and public use of property — and thereby effectively deletes the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”
In the Wisconsin case, the court has a chance to undo a tiny bit of the damage done to the takings clause in Kelo.
The issue involves the Murr family who owned two adjacent plots of land since the 1960s along the St. Croix River. One parcel featured a cabin while the other tract was empty and held as an investment property. The family eventually sought to sell the vacant lot to pay for improvements on the other property, but county officials stepped in and decreed that the tracts were considered a single parcel under regulations passed in the 1970s to limit development.
The Murrs demanded they be compensated for the second lot because the county had effectively prevented them from selling it or building on it. They’re correct. Using the regulatory state to prohibit a property owner from using his own land is no less a taking than if the county were to seize it for a highway. In both cases, the owner deserves just compensation.
The Associated Press reported Monday that the liberal justices appeared inclined to side with bureaucratic power and against property rights. Questions from the right-leaning justices indicated the opposite. Were Judge Gorsuch on the bench to hear this case, chances are good he’d choose the Constitution over the bloated administrative state.