SMITH: Burying property rights

Constitution eroded in Stop the Beach Renourishment case

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With all of the recent government actions eroding individual property rights, the Supreme Court’s decision in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection comes at a critical juncture. In Stop the Beach Renourishment, the Supreme Court addressed whether the Constitution prohibits courts from issuing decisions that effectively eliminate private property rights without providing just compensation. The case involved a challenge to a decision issued by the Florida Supreme Court authorizing local governments to create a public beach between an owner’s beachfront property and the water by dumping sand along the seabed. The Florida Supreme Court held that the state owed property owners no compensation for this physical invasion of their property because the owners did not have any property rights to contact with the water in the first place.

The U.S. Supreme Court upheld the Florida Supreme Court’s decision. However, it did so on narrow grounds, holding that the beach-restoration project did not interfere with any property rights under Florida law because the state owned the seabed and had the right to create new beachfront property. In doing so, the justices issued a variety of conflicting opinions regarding the more fundamental question at issue in the case: whether the Fifth Amendment’s Takings Clause applies to judicial actions.

Four justices strongly endorsed the notion that the Constitution prohibits judicial takings. As Justice Antonin Scalia observed, the text could not be clearer: “The Takings Clause … is not addressed to the action of a specific branch or branches.” The Fifth Amendment states that the government must provide “just compensation” whenever it takes private property for “public use.” There is no exception in the constitutional text authorizing a court, as opposed to a legislature, to take private property without compensation.

The other justices did not dispute the absence of any such limitation in the text of the Constitution. However, they were hesitant to decide the question, finding that it was not necessary for resolution of the case and that there were potential complications inherent in recognizing judicial takings. For example, while acknowledging that other provisions of the Constitution, such as the Due Process Clause, prohibit courts from interfering with private property rights, Justice Anthony M. Kennedy suggested that there were “certain difficulties” with applying the Takings Clause to the judicial branch and declined to “reach beyond the necessities of the case to recognize a judicial takings doctrine.” Likewise, Justice Stephen G. Breyer found that such questions were “better left for another day,” worrying that recognizing a judicial takings doctrine would “open the federal court doors to constitutional review of many, perhaps large numbers of, state-law cases in an area of law familiar to state, but not federal, judges.”

However, such prudential considerations cannot trump the plain language of the Constitution. As Justice Kennedy acknowledged, “The Takings Clause is an essential party of the constitutional structure, for it protects private property from expropriation without just compensation; and the right to own and hold property is necessary to the exercise and preservation of freedom.” Such fundamental constitutional guarantees should not be eroded or evaded because of potential practical “difficulties.”

Nor is this the first time that the court has declined to fully enforce the Constitution’s clear guarantees of private property rights. The court’s decision in Stop the Beach Renourishment follows on the heels of its controversial decision in Kelo v. City of New London, in which it allowed a municipality to take private property for economic development by a narrow 5-4 margin. Commentators on both the right and the left roundly criticized the Kelo decision as an erosion of fundamental property rights that was inconsistent with the Constitution. Not only did the court’s ruling deviate from the Constitution’s plain language, but as Justice Sandra Day O’Connor observed in her dissent, the beneficiaries of the court’s ruling would likely be those with “disproportionate influence and power in the political process.”

Stop the Beach Renourishment represents the latest chapter in this fundamental and critical debate over the scope of private property rights. Given the lack of consensus on the court and the continued efforts by all levels of government to encroach on these rights, proponents of these constitutional guarantees should remain vigilant.

Douglas Smith is an adjunct scholar at the American Enterprise Institute who filed an amicus brief in support of the property owners in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection.

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