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News-Sentinel.com Your Town. Your Voice.

Property rites

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.The Associated Press
Monday, June 26, 2017 09:18 am

". . .  nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It figures. No sooner do I praise the Supreme Court for unanimously championing the First Amendment than it goes and continues its dismantling of the Fifth Amendment. If Kelo v. the City of New London eviscerated the whole concept of private property (and it did), then Friday's Murr v. Wisconsin amounts to dancing on its grave.

In Kelo, the court's 5-4 majority reinterpreted the "public use" justification for the eminent domain taking private property (for roads, bridges, dams, schools and so on, things that the government does to benefit all citizens) to also mean "public benefit," which greatly expanded the ability of governments to seize private property. The government gets to define "public benefit," which means it can take property for just about anything it wants to . "Hey, that private developer over there can put something must nicer than you have on that property, make it a nice big mall or something, which means we'll get a lot more tax money from it. So screw you."

But even if the government could take whatever you have whenever it wanted to and for whatever reason it wanted to, it at least had to provide you with "just compensation." Well, at least until Murr it did.

Now, based on that 5-3 decision (Justice Neil Gorsuch wasn't around for the arguments in the case so did not vote), the government can find all sorts of creative ways to get around paying for the property it takes. 

Until now, the court didn't have to out-and-out take your property to have to pay you. If it made decisions making it impossible for you to enjoy the use of your property, it still had to pay. That's what happened here, but the government didn't want to pay.

The case involved Donna Murr and her siblings in Wisconsin. The family owned two small parcels of land along the St. Croix River. They had a cabin on one of the lots and the adjoining property was left vacant as an investment. In 2004, they decided to sell the vacant lot and use the profit to upgrade their cabin on the other lot.

Donna and the other Murr children's parents had acquired the lots in the 1960s. But in the 1980s, the government enacted regulations to protect the river, including one forbidding the construction of anything on a plot of less than 1 acre. This effectively prohibited the sale of each of the lots. For the purposes of enforcing the river regulations, the government in effect "combined" the two properties, which meant the family could sell both or none of them but neither of them individually, unless it was to the government.

It also meant the government was the only entity eligible to buy the lot. And when it offered the family $40,000 instead of the $400,000 it had been appraised at, the family sued. And ran into the anti-private property majority that has also ruled in Kelo.

"Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property."

Of course they can still use their property. The two parcels considered together now make up a plot big enough under the law's standards to build on, so they can go ahead and refurbish their cottage. They just, you know, don't have the money to pay for it. Too bad, property-owning pipsqueaks.

So now, based on Kelo and Murr, the government can pretty much take anything it wants and pay us squat for it. It's more complicated than that, of course, and subject to endless litigation, but that's the working premise we have to understand from this point on.

And it's a sad day for the Constitution, the rule of law and the whole concept of this country, which was based on (how many times must we keep saying this?) the greatest political idea in the history of the world: Rights inhere in the individual. If we are to keep the government properly at bay, and the individual rightly exalted, we must keep insisting on keeping what is ours and retaining the ability to enjoy the fruits of our labor. For those who insist that private property rights are somewhere lower on the scale than other so-called "human rights," I would suggest that you consider how far you will get in claiming your rights if the government keeps getting reaffirmed in its belief that it whatever you have is someone else's for the taking.

While we're on the subject, let's consider the common denominator in these two cases. Kelo was decided by the court's then four liberals along with "centrist" Anthony Kennedy. Murr was decided by the court's current four liberals, and "centrist" Anthony Kennedy. 

Yes, Anthony Kenedy," called the swing vote that can take an evenly split court decision to the liberal side or the conservative side depending on which side of the bed he got up on, more often than not sides with big government over the individual. That's why people who complain about a "conservative" Supreme Court don't know what they're talking about. We have an evenly divided court that can be pulled either way. That was true with Antonin Scalia on the court, and it's still true with Neil Gorsuch on the court (assuming, that is, that he even votes as the conservative he is purported to be). We won't have a solidly conservative court until Kennedy or one of the liberals is replaced.

Which makes it fascinating that one of the hottest stories around today is that the speculation on whether Kennedy will retire "has reached fever pitch":

The rumors have swirled for months and the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight on whether he will step down.

Helping drive the speculation, dozens of Kennedy's former law clerks traveled to Washington this weekend to participate in a private clerk reunion that occurs regularly — and many of them wondered if it will be their last chance to meet with him while he is still on the bench.

The prospect delights some:

Kennedy is unreliable in too many instances when given a choice between more power for the government over the individual or less. The other four liberals are lost causes, apparently never having seen a case of bigger government which they couldn’t celebrate. We need a real majority on the Supreme Court with conservative, small government principles in their hearts or these erosions of fundamental rights will continue.

And horrifies others, like poor Ruth Marcus, who are urging him to hang in there:

Your career has been characterized by insistence on civility, respect for the dignity of all individuals and commitment to the rule of law — qualities absent in our president. Just read Trump’s tweets and ask yourself: Do I really want my successor named by this man?

I'm of course more in the "hip, hip, hooray" camp, but with a reservation or two. As I hinted at earlier, we don't always know how a justice is going to vote once he actually gets on the court,no matter what his writings or record might indicate. The prospect of having two unknowns on the court at the same time is a little unsettling.

But what the hell, roll the dice. Anything that scares Ruth Marcus can't be all bad.

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