Life, Liberty, Property: Partial takings of the use and value of property through regulation are still takings (without compensation).
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IN THIS ISSUE:
- Partial Takings Are Takings
- Politics Is Murder
- Making Sense of Censorship
- Land, Whoa
Partial Takings Are Takings
A case currently under consideration in a U.S. District Court provides an excellent opportunity for the federal judiciary to rectify decades of bad decisions that have whittled down to nearly nothing the Fifth Amendment guarantee against uncompensated government takings of private property.
The U.S. Fish and Wildlife Service (FWS) in 2020 declared more than 300,000 acres of Alabama and Mississippi land as “critical habitat” for the black pine snake, which the FWS had listed as threatened in 2015 under the Endangered Species Act of 1973. Just under 100,000 acres of that land was privately owned, and about 10,000 of it belongs to a lumber business operated by plaintiff Gray Skipper.
Or “belonged.” In Skipper v. United States Fish and Wildlife Service et al., the plaintiffs argue the land use restrictions resulting from this critical habitat designation will reduce the value of the property. That is defined as a “taking,” which the Fifth Amendment to the Constitution states cannot be done without just compensation.
Writing at Law & Liberty, Pepperdine University economics professor and Heartland Institute Policy Advisor Gary M. Galles points out that a provision of the Bill of Rights long considered obsolete provides a crucial insight into the real intent behind the Fifth Amendment protections of private property and indicates the FWS has no constitutional authority to take any part of the value of this land—or any other privately owned property—without providing just compensation to the owners.
Galles begins by outlining how the Fifth Amendment should apply in the current case (and a previous case involving a species of frog), and how the courts generally fail to do so:
FWS’s actions, with respect to both the dusky gopher frog and the black pinesnake, are clear violations of the Fifth Amendment’s “nor shall private property be taken for public use without just compensation.” But it has not always been so obvious to previous Courts. The word “taken” has been redefined almost completely away by rulings that government has not taken property requiring compensation, as long as the owner retains some value (as if one was to deem that a mugger did not rob you if he left you with enough money for cab fare home). As Justice Stevens expressed this questionable bit of logic in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Preservation Council, owners were due compensation only in “the extraordinary case in which a regulation permanently deprives property of all value.”
This process has chipped away at our Fifth Amendment protection against uncompensated takings until virtually nothing remains. Justice Holmes argued against this all the way back in 1922, Galles notes:
Justice Oliver Wendell Holmes recognized in Pennsylvania Coal: “The protection of private property in the Fifth Amendment … provides that it shall not be taken for such use without compensation. … When this seemingly absolute protection is qualified … the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.”
Making a distinction between “physical takings and regulatory takings,” Stevens’s statement in the 2002 case essentially eliminated the protections offered by the Fifth Amendment. Under Stevens’s reasoning, in a decision six justices joined, government regulations could take away all but one iota of the value of your property for what it could characterize as a millisecond less than eternity, and it wouldn’t have to give you a nickel’s worth of compensation. Clearly the Fifth Amendment was not intended to have a loophole so big you could comfortably drive the Death Star through it. But that was what the Court claimed.
One might argue that no court, and especially not the Supreme Court, would ever go quite that far. OK, but I certainly would not stake my life, liberty, or property on it.
The way to get at what the Fifth Amendment really means is to look at it in light of the Third Amendment, Galles writes:
Justice Stevens’ tortured Fifth Amendment logic allowing partial takings to be ignored as if they were not takings at all could be rectified if the Court considered the Third Amendment seriously. That would bridge the substantial gap between two things Justice William Douglas expressed. He said, “The Fifth Amendment is an old friend a good friend. It is one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized,” yet he also argued that “few provisions of our Bill of Rights, notably the Third Amendment and its prohibition against quartering of soldiers in private homes, have no immediate relation to any modern problem. Most of the other guarantees against government are, however, as important today as they were when first adopted.”
The Third Amendment’s guarantee that “No soldier shall, in time of peace be quartered in any house, without the consent of the owner” clarifies the Fifth Amendment’s Takings Clause. It expressly prohibits even a partial government taking of property—the value of that part of one’s property forcibly required to quarter (that is, house) a soldier for a period of time, which overrides the use toward which the owner would have put that part of their property—even in pursuit of the constitutionally enumerated federal function of providing for the common defense. This is crucial for questions involving species preservation proposals under the ESA, as they are also partial takings, but they do not involve a constitutionally enumerated federal function.
Galles summarizes the logical conclusion as follows: “The Third Amendment reflects our founders’ view that takings are not limited only to complete government property takeovers, but also partial takings.”
It is likely that if this case reaches the Supreme Court, the justices will decide it on relatively narrow grounds, ruling that it is unjustifiable for the government to designate land as critical habitat for a species that doesn’t live there. Acknowledgment of the full extent of our property rights as American citizens is probably not in the cards at present.
Whether you see Galles’ argument as ingenious or merely a clever sophistry will depend greatly on the extent of your taste for unlimited federal government power. The U.S. Supreme Court has spent more than a hundred years making excuses for expansion of government, until almost nothing remains of most of our rights. The current Court has taken some steps toward dialing that back a bit. Skipper v. United States Fish and Wildlife Service et al. could give the Court an opportunity to confirm the full protection of the Fifth Amendment. There’s no time like the present, as the saying goes.
Sources: United States District Court for the Southern District of Alabama; Law & Liberty; Weyerhaeuser v. Fish and Wildlife Services
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Politics Is Murder
It is a fierce competition, but Chicago and New Orleans have come out on top as the nation’s “murder capitals,” reports Wirepoints.
Chicago led the nation with 697 homicides in 2022, “by far the most among the top 75 cities,” report Matt Rosenberg, Ted Dabrowski, and John Klingner in their analysis and ranking of crime rates in the nation’s 75 largest cities.
New Orleans had the highest per capita criminal toll on human life, at 74.3 per 100,000 people. The overall homicide rate for the United States was less than one-tenth of that: 6.5 per 100,000 in 2020 (“the most recent reliable national rate,” the reporters state).
Chicago had the most homicides in the nation for the 11th straight year.
“Chicago suffers from a trifecta of failure: Cook County State’s Attorney Kim Foxx, the county’s Chief Judge Timothy Evans and Mayor Lori Lightfoot have crippled criminal justice and destroyed police morale,” the Wirepoints analysts state.
As in Chicago, the New Orleans murder rate is attributable directly to political failure, Wirepoints reports:
New Orleans is failing to tamp down its runaway homicide rate and the issue of political leadership sticks out as a reason why. In mid-2022, two city council members blasted Mayor LaToya Cantrell for failing to develop a violence mitigation strategy. They claimed she has downplayed rampant deadly violence to protect the city’s reputation as a tourism destination. They also said she has prioritized public appearances and sound bites instead of leading a strong response to the city’s killings.
With such “progressive” politicians in power in the nation’s major cities, crime problems are rapidly getting progressively worse, the Wirepoints analysts note: “There’s been an explosion of homicides since George Floyd’s death in 2020. Half of today’s top homicide hubs saw jumps of 50 percent or more in their homicide rates compared to pre-Floyd 2019.”
In Chicago as in the other most-crime-ridden cities, policies implemented by Foxx, Evans, Lightfoot, and others have flooded the city’s streets and alleys with known criminals:
Foxx dropped 30 percent of felony prosecutions in her first three years as state’s attorney versus 19 percent in her predecessor’s last three. Her highest dismissal rates were for defendants charged with narcotics offenses, escape, and retail theft. Foxx has also found new ways to sidestep prosecution of suspects charged in fatal shootings by calling them “mutual combatants.”
Cook County Judge Evans “issued a ‘bail reform’ policy in late 2017 that tipped the scales so local judges began to let even serious offenders out before trial on low-cash or no-cash bail,” Wirepoints reports. “The result by midyear 2022 was an additional 15,000 new offenses for charged suspects already awaiting trial.” Lightfoot, a former federal prosecutor, has overseen a loss of 12 percent of the city’s police officers, a precipitous decline in morale, and “more than 400,000 high-priority 911 calls put onto “backlog” status in 2021 because no police were available to respond.”
These policies are the direct opposite of the successful crime-control strategies that restored order to places such as New York City in the 1990s, which were based on the “broken windows” theory of James Q. Wilson and George L. Kelling. New York City Police Commissioner William Bratton deployed this concept to great success during that decade, with felonies falling by 40 percent and the homicide rate cut in half over the course of only a half-dozen years.
Reversing that process and upping the ante in most of the nation’s major cities has resulted in an equally rapid, and horribly tragic, rise in crime. In Chicago, for example, Wirepoints reports,
Much of the deadly violence traces back to a broader decriminalization effort by officials that has increased tolerance for lower-level crimes. Foxx has effectively decriminalized retail theft under $1,000, while state legislation successfully pushed by her political mentor, Cook County Board President Toni Preckwinkle, has limited the practice of prosecuting armed juvenile carjackers as adults.
Since then, young carjackers granted leniency in court have subsequently been charged with killing drivers in new carjacking attempts.
As the mention of carjackings indicates, these progressive activists in positions of power are perfectly content to let violent criminals roam the city at will:
Emblematic, horrifying stories abound. A woman out on bail for stabbing a random pedestrian was charged with doing the same thing again to four people. Little thought was given to the dangers posed by pretrial release of an accused stabber.
Overall, Chicago police made arrests for only 5 percent of all offenses in 2022, down from an anemic 10 percent in 2019, as a result of an effective ban on chasing criminals on foot, an 11-page “guidance policy” limiting vehicle pursuits, harsh anti-police rhetoric from city government leaders, a shortage of officers (the number of beat cops is down 19 percent since Lightfoot took office in 2019), and numerous other highly damaging yet easily reversible policies.
Given her lamentable record, it should be little surprise that Lightfoot this week became the first Chicago mayor in 40 years to be denied reelection. As the headline of a Wall Street Journal article by essayist and social critic Joseph Epstein noted during the campaign, “Crime Is the Only Issue in the Chicago Mayor’s Race.” It proved to be so.
The two candidates in the runoff coming up on April 4 are on opposite sides of the crime issue. Paul Vallas, the top vote-getter in the primary, is a former public school superintendent who made crime control a focus of his campaign and won the endorsement of the local Fraternal Order of Police. County board member Brandon Johnson, a “former teacher and union organizer has argued that the answer to addressing crime is not more money for police but more investment in mental health care, education, jobs and affordable housing, and he was accused by rivals such as Lightfoot of wanting to defund the police,” AP reports.
Johnson is trying to downplay the contrast on crime, AP notes:
Johnson has avoided the word “defund” during the race, and his campaign says he does not want to cut the number of police officers. But in a 2020 radio interview, Johnson said defunding is not just a slogan but “an actual real political goal,” and he sponsored a nonbinding resolution on the county board to redirect money from policing and jails to social services.
The fundamental reason we consent to have governments is so that we, the people, can band together to protect our life, liberty, and property through orderly processes instead of personal vendettas and mob rule. Governments and policymakers that fail to do so do not deserve to remain in authority.
The people of Chicago have expressed their abundantly justified disappointment in Mayor Lori Lightfoot. They will not receive proper protection by their local government, however, unless and until they acknowledge that what is killing their city is their elected leaders’ reckless polices based on racial fixations and misplaced compassion for the perpetrators of crimes instead of their victims.
Source: Wirepoints; AP; The Wall Street Journal
Making Sense of Censorship
Writing in the New York Post about efforts to curtail censorship by powerful, multinational social media companies, ace political commentator and Modern Age editor-in-chief Daniel McCarthy offers what could be a fiendishly clever idea or the recipe for an even-worse mess than the woeful current state of the Internet:
There are only two ways out. One is to restore the decentralized messiness of the early Internet, where writers and editors were responsible only to themselves and the public law, not to corporate overlords. The other is to let Congress buy Twitter, or another network, so the protections of the First Amendment apply in the virtual town square as well as in what’s left of the real one.
Let that sink in for a moment, while we consider how the current situation endangers the existence of a free society. McCarthy writes,
Online speech is more heavily restricted than ever. A few large companies, which share a progressive bias, control what can be said on their platforms and curb the circulation of politically sensitive news, such as the New York Post’s 2020 report on the troubling contents of Hunter Biden’s laptop.
Things are poised to get even worse, McCarthy notes. With two major lawsuits against Google and Twitter urging the courts to reconsider application of Section 230 of the Communications Decency Act, which protects companies from liability for items their users post, the result may be to give even more power to Big Tech, McCarthy argues:
Confronted with the risk of more lawsuits, the Internet’s gatekeepers will crack down. … But the tech companies have shown they have a distinctly partisan idea of what constitutes domestic extremism. Can the tech companies be trusted to draw the right lines between actual extremism and conservative politics that Mark Zuckerberg or Bill Gates—or some millennial manager—finds distasteful? We already know the answer.
As McCarthy notes, the takeover of the printing presses by a few gigantic multinational corporations has destroyed freedom of the press by allowing private actors to choke off viewpoints they oppose, because the First Amendment does not (and should not) apply to nongovernment activities. Now it might get even worse.
McCarthy’s proposed solution is surely ingenious: create a competitor to the private sector communications oligarchs that is subject to the First Amendment stricture that the federal government may not interfere with the freedom of the press.
It could work. However, one must wonder how long it would take for a highly partisan government to corrupt such a system. Nonetheless, I am interested in hearing more from McCarthy and others on this idea.
Sources: New York Post
The Canadian province of Alberta is about to consider legislation to prevent employees of the federal government from trespassing onto private property.
A bill proposed for introduction in the upcoming spring session of the provincial legislature is “the Red Tape Reduction Statutes Amendment Act, which will make amendments to the Trespass Act and Petty Trespass Act in order to prevent the entry of federal government agents onto privately owned land in Alberta without permission,” The Epoch Times reports.
Alberta House Leader Joseph Schow said if federal employees “decide to trespass on private land, they will be charged,” the newspaper reports. The bill is meant to protect residents’ property rights, the story reports:
“In this province, we do respect property rights. And it’s always nice to ask for permission before you go on someone’s private land,” said Schow. “So we’re making that an offence in this province.”
The neighboring province of Saskatchewan passed a similar law last summer, subjecting offenders to fines of up to $200,000.
Source: The Epoch Times