MODERN PROGRESSIVES HAVE SOUGHT TO UNDERMINE THE CONSTITUTIONAL CONSENSUS ON LIBERTY BY DENYING CITIZENS ACCESS TO FEDERAL COURTS IN SOME TAKINGS CASES

CONSTITUTIONAL LAWPOLITICS

A Supreme Court Decision Reflecting the Progressive Dismissal of Liberty

OCTOBER 3, 201

PUBLIC DISCOURSE

BY TREY DIMSDALE AND PATRICK GARRY

The constitutional framers knew that not everyone would always agree on how other people exercised their fundamental rights, such as property and religious liberty, which was precisely why those rights were enshrined in the Constitution. However, modern progressives have sought to undermine that constitutional consensus.

The Supreme Court issued a number of high-profile decisions last term, some of which involved the census’s question on citizenship, political gerrymandering, and the Bladensburg cross. But one decision the media almost completely ignored was that of Knick v. Township of Scotta 5-4 opinion that, perhaps more than any other decision last term, illustrates the differences between modern conservatives and liberals on the question of liberty.

The media almost completely ignored Knick v. Townshipof Scotta 5-4 opinion that, perhaps more than any other decision last term, illustrates the differences between modern conservatives and liberals on the question of liberty.

At first glance, Knick appears to involve dry, procedural matters, of interest only to lawyers and judges. The Court held in Knick that someone with a Fifth Amendment takings claim does not have to go first to state court to vindicate their rights, but can proceed immediately to federal court. On a much deeper level though, the case revealed the differences between the conservative and liberal visions of individual liberty, of its importance in the constitutional scheme, and of the nature of the Constitution.

Modern progressives have sought to undermine the constitutional consensus on liberty.

The Question at Hand: The Right of Immediate Federal Appeal

The case arose when Rose Mary Knick brought suit against her township, Scott, Pennsylvania, which in 2012 had passed an ordinance that required any owner of land on which old gravestones might be located to allow the general public to enter the land and visit the grave site. Since Pennsylvania does not forbid burials on private land, small family grave sites, especially colonial-era gravesites, are not uncommon on private property. After the township decided that Knick, a 70-year-old single woman, might have gravestones on her 90-acre farm, it ordered her to let the public access her land to visit the suspected sites and put a public trail on her property.

Because Knick was given no compensation for this regulatory intrusion, she sued under the Fifth Amendment takings clause, which prohibits federal and state governments from taking private property without giving “just compensation” for that taking, which can arise from regulations that unduly burden an owner’s use or enjoyment of the property. But the appeal to the Supreme Court dealt only with the more narrow issue of whether the property owner had first to take her claim to state court before bringing it to federal court.

The Civil Rights Act of 1871 gives every person a right to sue in federal court for a constitutional violation of his or her rights, and the Fifth Amendment obviously creates a constitutional limitation against the government’s taking of private property. Under the Civil Rights Act, anyone with a constitutional claim, be it a First Amendment speech claim or a Fourth Amendment search and seizure claim, can take his or her case directly to a federal court. Due to subsequent Supreme Court decisions, however, the one exception was a claim under the Fifth Amendment takings clause, which could not be brought to federal court until it was fully litigated in state court. Thus, as far as the Supreme Court had been concerned, prior to Knick, property rights occupy a second-class status relative to other individual liberties in the Bill of Rights.

This second-class status resulted from a 1985 decision in Williamson County v. Hamilton Bank of Johnson Cityin which the Court held that an aggrieved property owner cannot bring a takings case to federal court until he or she first exhausts all legal remedies in state court. Then, to make matters worse, twenty years later the Court ruled, in San Remo Hotel v. County of San Franciscothat a person whose takings claim has been rejected by a state court cannot then bring a claim in federal court, because the state court’s decision is final and cannot be litigated again. Consequently, as a result of Williamson County and San Remo Hotel, persons whose property has been taken by the government are denied access to federal courts to seek redress for that constitutional violation if state courts side with the local government. This made property rights the only constitutional right that cannot be vindicated in federal court.

An Opposition to Property Rights, in Disguise

Knick did not attract much media attention, perhaps because the case only seemed to involve a matter of procedure, namely, the choice of jurisdiction for bringing takings claims under the Fifth Amendment. Moreover, the dissenting justices did not present a controversial argument. The four liberal dissenters actually stood behind the conservative position of stare decisis, or respect for precedent.

The dissenters said Williamson County was correctly decided, but that in any event stare decisis should preclude its being overruled. Justice Kagan warned against a rush to overturn precedents, even though the Court’s decision in Citizens United (which decided that the First Amendment protected the right of corporations and unions to spend money on political campaign advertisements) was barely announced when many liberals, including President Obama, demanded that it be overturned. Moreover, progressivism, the philosophy of much contemporary liberalism, has a low regard for tradition and precedent as such.

The dissent’s stare decisis argument in Knick was a smokescreen for a much more fundamental and far-reaching opposition to property rights. Liberal judicial philosophy today harbors a view of liberty that contrasts sharply with that of the Bill of Rights. While the framers gave a high priority to property rights, modern progressives downgrade them to mere interests, usually ones that the government must regulate.

Since the New Deal, progressives have considered property rights to be a tool that the rich use to undermine democracy. Today, however, many leaders of the progressive movement are themselves a wealthy elite. Now they oppose property rights not because they might benefit the rich, but because they are a strong check on government. Progressivism seeks to expand the power and reach of the federal government, and therefore distrusts any rights or liberties for individuals that might obstruct that mission and supports any that will help it. The power of such rights to check government is precisely why the Anti-Federalists of the constitutional period fought so hard for a Bill of Rights.

This reasoning also explains progressives’ recent opposition to religious liberty, the first liberty mentioned in the Bill of Rights. They frame their position in terms of equality and anti-discrimination, but in fact they oppose religious freedom because it might protect age-old views on marriage that conflict with progressive social philosophy. More fundamentally, they wish to disarm religion as a potential check on the power of government and on the advancement of secularism within the federal government.

Even progressives’ attitudes on free speech demonstrate their discomfort with individual liberty. They call it unconstitutional to put any restrictions on marketing the most violent of games to children, even though they will concede almost no constitutional protections to protests on public property outside abortion clinics. They defend providing sexually explicit entertainment to children as if it were the pillar of democratic government, even as they curtail and punish—through laws on campaign speech and finance—speech that is unquestionably necessary for political life. It does not seem a stretch to conclude that progressives value free speech not on principle but only if it is useful to them.

Do Rights Exist Prior to Government or Not?

But there is an even more fundamental difference that the Knick decision reveals. The majority in Williamson County, the decision that was overruled in Knick, understood the operation of constitutional guarantees in a dangerous way. The Williamson Court understood the Fifth Amendment to give rise to a right to participate in a procedure—administrative or judicial. The Knick Court, however, recognizes that a government taking gives citizens the right not to appeal to the government, but to be compensated. The difference may be subtle, but Williamson implies that property rights (and possibly any right entertained under the Bill of Rights) are granted by the Constitution. The majority in Knick, however, implies that these rights exist prior to the Bill of Rights. Therefore the Constitution does not grant these rights, but merely protects them.

Some rights—like property rights—are natural rights. These are rights that are independent of any particular legal system or custom and are therefore inalienable. Other rights are legal rights, which are granted by law and can be modified or eliminated by law. No matter the type, all rights create a corresponding duty. So, the (natural) right to one’s property results in an entitlement to the enjoyment of that property on the part of the owner, and also imposes a duty on all others (including the state) to respect that entitlement. The breach of this duty—which could include trespass, vandalism, or even a taking for a public purpose—is definitionally a violation of this (natural) right. Because property rights are natural rights, such a breach does not require a law to define it as harm. The mere breach of the duty gives rise to a corollary right—the right to compensation. The Fifth Amendment properly construed understands a taking to be a breach of a duty created by a natural right, which is prior to the Constitution. Such a breach, therefore, gives immediate rise to a right to compensation—no tribunal needs to reach this conclusion. The Knick Court implies this. The Williamson Court, however, did not, and merely granted an aggrieved property owner access (and imperfect access at that) to the courts. The former seems to appreciate the implications of the natural-right character of property rights, while the later seems to imply that a government tribunal is required for more than just calculating damages.

The Primacy of Individual Rights Should Not Be a Political Issue

The vote in Knick shows us that the Framers’ idea of liberty as a check on government―a notion at the heart of the Bill of Rights and of our constitutional democracy―has become a partisan issue. The right defends it and the left decries it. Progressives view property rights as mere interests that do not have to be treated like other rights laid out in the Constitution. They view religious exercise as even less than a mere interest―as an illegitimate right that undermines the idea of secularist government. They accept the right of free speech only for their reliable cultural allies, like Hollywood; but if speech challenges progressives’ agenda, they call it dangerous and hateful.

But a notion as fundamental as individual liberty should not be so contentious. Indeed, liberty lies at the core of the constitutional order and for nearly 200 years has been accepted as such. The constitutional framers knew that not everyone would always agree on how other people exercised their fundamental rights, such as property and religious liberty, which was precisely why those rights were enshrined in the Constitution. However, modern progressives have sought to undermine that constitutional consensus on liberty, making various rights—e.g., property and religious liberty—secondary to the progressive agenda of a secularist society commanded by a domineering central government. Fortunately, as Knick reveals, the Supreme Court remains committed to the scheme of liberty set out in the U.S. Constitution.

About the Author

TREY DIMSDALE

Trey Dimsdale holds degrees in law, theology, and ethics and has worked as an attorney, educator, and non-profit administrator, and pastor. He is author of several articles, essays, and editorials on a wide range of topics and he has spoken around the world on issues as diverse a… READ MORE

PATRICK GARRY

Patrick Garry is the author of Redefining Conservatism: A Creed for the Poor and Disadvantaged (Encounter Books) and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor (ISI Books).

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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