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John J. Bastiat / July 1, 2019

The Fifth Amendment Matters After All

SCOTUS rules on an important case regarding property rights in the wake of Kelo.

The Fifth Amendment’s so-called “Takings Clause” has been a train wreck of government abuse for decades, culminating in the notorious decision, Kelo v. City of New London. In that decision, in its infinite wisdom the Supreme Court of the United States (SCOTUS) interpreted the U.S. Constitution to mean, effectively, “It’s okay for the government to take the private land of ‘Person A’ and give it to ‘Person B’, as long as the public would benefit from such a taking.” Sure. That’s what it says — let’s go with that!

Aaaacctually, the Constitution is silent as to such “rights” carve-outs, and for good reason: The Founders never wanted them to happen. They wanted instead to jealously guard the rights of the individual over and against the government, which tends to encroach upon those rights over time — as by use of a private third party, in Kelo. There, the City of New London wanted a good deal on Ms. Kelo’s private property without having to pay for it, by using a third-party land developer do its dirty work. SCOTUS said that was okay, prompting a firestorm of congressional backlash and public outrage.

Fast-forward to today and apparently the current Court has learned its lesson, at least somewhat. In last week’s Knick v. Township of Scott, SCOTUS overruled a previous decision that Takings claimants must seek compensation in state courts first before they would be allowed to approach the federal courts.

As Chief Justice John Roberts noted in his decision written for the 5-4 majority, the real problem is that another SCOTUS ruling mandated that a denial in a state court bars a subsequent suit in a federal court. Roberts explained, “The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning,” that is, it dies during its birth. As a result, the requirement to sue first in state courts “imposes an unjustifiable burden on takings plaintiffs … and must be overruled.”

Of course the statists — those who seek to expand rather than limit the powers of government — were unhappy with this decision, as telegraphed by the Court’s narrow, 5-4 split. Also, in a dissent loaded with an apparent lack of a sense of irony, Justice Elena Kagan excoriated the Court for overruling a well-established Court precedent without sufficient justification, writing, “But the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance.” Her reliance on this doctrine (Latin for “let the decision stand”) is especially rich in the wake of so many 5-4 leftist SCOTUS “wins” that overturned countless long-time precedents. And of course Justice Kagan played no small part in many of those decisions.

Additionally, as The Wall Street Journal (WSJ) noted, “She also overstates the Court’s willfulness here because it is correcting a departure from the proper understanding of the Fifth Amendment, not inventing some new constitutional doctrine” (emphasis ours) — as such narrow leftist majorities had done, to the great damage of the Constitution.

The WSJ expressed its hope that Kelo would be the next decision overturned, but the good news is that even if it isn’t, being able to redress a Takings wrong in federal, not state, courts first may very well be the practical end of Kelo. In the first place, many states will not want to air out their dirty laundry on national display in a federal court. In the second, federal courts — as compared to state courts — are far more sane when it comes to Takings decisions, because the federal courts play more disinterested “honest brokers” than the inherently interested state courts. Finally, visceral public rebellion against the Kelo decision has continued unabated from Day One, and is unlikely to change.

We’re happy for this decision and remain guardedly optimistic for the Takings-Clause-associated rights of the private property owner — for now. Even so, we are under no illusions that a one-justice turnover on the Court’s makeup would spell the immediate end of such optimism — hence the importance of the presidential election in 2020.

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