One confounding issue facing small business landowners is that their federally-protected property rights are often relegated to second-class status. Because property interests remain critically important to small business owners, NFIB aggressively enforces constitutional protections for private property. It’s problematic when government imposes unreasonable restrictions on what can be done with one’s land, or when government seeks to take away the right to exclude the public from private property. In such cases, the Fifth Amendment to the Constitution allows landowners to seek just compensation if the government’s conduct amounts to a “taking.” But ironically, current law makes it impossible to vindicate federal constitutional rights in federal court—at least when state or local authorities are trampling upon your rights.
In a rule that can only be called a ‘constitutional absurdity,’ the Supreme Court’s 1985 decision in Williamson County v. Hamilton City Bank requires landowners to sue in state court to “ripen” a federal takings claim. But state litigation closes the federal court house doors because one cannot relitigate a claim lost in state court. This necessarily spells trouble for landowners living in jurisdictions that are hostile to private property rights (think California) with courts disinclined to issue substantial monetary judgments against other branches of government.
In Knick v. Township of Scott, NFIB has asked the Supreme Court to reconsider Williamson County. We argue in our amicus brief that Williamson County’s state litigation requirement is improper as a matter of original construction and historical precedent. Moreover, Williamson County’s logic would expel essentially any federal constitutional claim to state courts, as one might just as well say that there is no constitutional violation of federally protected voting rights, or any other right secured through the Fourteenth Amendment’s Due Process Clause, until after one has sought to invalidate an offending state law in state court.
It is worth noting that one of the primary motivations for the Reconstruction Congress ratifying the Fourteenth Amendment was to secure property rights. And in the Nineteenth Century Congress, Congress enacted a statute authorizing individuals to bring claims to vindicate their federal rights in federal court precisely because Congress didn’t trust state courts to provide adequate protections. So it is an unhappy historical accident that the Supreme Court would relegate federal takings claims to the state courts a century later. But the time has come to correct that mistake and restore the Fifth Amendment on equal footing with other fundamental rights.