Ordinary Americans are usually flabbergasted when they learn that property rights and economic liberties enjoy only minimal constitutional protections—at least since the New Deal era. But, we’ve been passionately fighting to breathe new life into those constitutional provisions that were originally intended to protect property rights. Why? Because strong property right protections are essential if we want small business to thrive. As the Founding Fathers put it, property rights are the guardian of every other right.
The good news is that we’ve had some notable successes in recent years. For example, in Arkansas Game & Fish Commission v. United States, 568 U.S. __ (2012), we successfully urged the Supreme Court to hold that government can be held liable for causing temporary flooding on private property. We also helped secure another win for property rights in Koontz v. St. Johns River Management District, 133 S.C. 2586 (2013), wherein the Court held that permitting authorities cannot withhold permit approvals on account of a business owner’s refusal to accede to extortionate conditions—in that case a government demand that an entrepreneur pay thousands of dollars to make public improvements as a condition of permit approval. Most recently, in Horne v. U.S.D.A., 576 U.S. __ (2015), we were pleased to see the Court rule that government is forbidden from confiscating portions of a farmer’s crop, unless just compensation is paid.
And this term, we are pleased to see that the Supreme Court has—once more—decided to hear another important property rights case. We previously filed an amicus brief urging the Court to hear arguments in Murr v. Wisconsin because the case raised an important question: Whether government can deny a landowner the right to use a parcel of land (without compensation) if he or she owns an adjacent lot? For example, it’s not uncommon for a farmer to own several tracts of land in near proximity.
Of course, one would think that a landowner should have every right to use and enjoy each parcel of land that he or she may own. After all, the owner has invested hard-earned money to acquire the property and fully expects to be able to use it. But remarkably the Wisconsin courts held otherwise.
We suspect that the Court likely took this case because this issue (“the parcel as a whole doctrine”) comes up quite frequently in regulatory takings cases throughout the country, as courts consider whether development restrictions go so far as to amount to a taking. The government often seeks to downplay the impact of regulatory restrictions by arguing that the owner retains economic rights in a larger piece of property (i.e., one patched together like a quilt from smaller parcels)—notwithstanding the fact that the restriction might completely prohibit development on one of the owner’s lots. In other words, in cases where a small business owns adjoining lots, the government might seek to prohibit all uses of one of those lots without offering any compensation at all. Accordingly, we’re hoping the Supreme Court will clarify that—going forward—government cannot evade the Takings Clause in this fashion. As we’ve argued previously, government cannot manipulate property rights out of existence.
For further thoughts, checkout Robert Thomas’ commentary at Inversecondemnation.com. Also, more in depth analysis is available on the PLF Liberty Blog.