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Commentary

When ‘Reasonable’ Burdens Aren’t



While most eyes were on Brett Kavanaugh’s nomination battle, the Supreme Court opened its term by hearing Weyerhaeuser v. Fish and Wildlife Services, a property rights case with substantial implications for Americans.

The case is an appeal of a Fifth Circuit Court of Appeals ruling for the government involving about a hundred remaining dusky gopher frogs in Mississippi. The Fish and Wildlife Service designated 1,500 acres of privately owned land in Louisiana as critical habitat for the frog. But the frogs have not lived in Louisiana for fifty years. The location’s loblolly pines would need to be removed and replaced with longleaf pines, which require periodic burning. Yet Fish and Wildlife has decided that forcing the owner to forgo other profitable opportunities and adapt his land for the frog is “reasonable" without even conducting an environmental impact study.

The case focuses on the “reasonableness" of designating as “critical habitat" private land which is not currently suitable for the frogs but could be made so at some cost. (Essentially, most ownership rights would be transferred to the frogs.) Justice Samuel Alito captured the issue well when he said, “The question is who is going to have to pay and who should pay for the preservation of this public good."

It seems blatantly obvious that what Fish and Wildlife has imposed on the property-owner violates the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use without just compensation." It has not been so obvious to previous courts. The word “taken" has largely been redefined away by rulings holding that the government has not actually taken property, requiring compensation, as long as the owner retains some value. As Justice John Paul Stevens expressed the principle in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), owners are due compensation only in “the extraordinary case in which a regulation permanently deprives property of all value."

That tortured Fifth Amendment logic, however, could be rectified by taking the Third Amendment seriously.

The Third Amendment’s guarantee that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner" clarifies the Fifth Amendment’s Takings Clause by expressly prohibiting even a partial government taking of property—the value of that part of one’s property taken to quarter a soldier – even in pursuing the constitutionally enumerated federal function of providing for the common defense.

The Third Amendment reflects our founders’ view that takings are not limited only to complete government property takeovers; they also include partial takings. As John Adams wrote, “[p]roperty is surely a right of mankind as real as liberty[.] ... The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence." Without such an understanding, constitutional property rights can be almost entirely eviscerated. Weyerhaeuser v. Fish and Wildlife Services demonstrates that fact.

To illustrate, consider the constitutional implications if Congress passed a law declaring dusky gopher frogs to be U.S. soldiers. The Endangered Species Act as currently applied would then be invalid with respect to the frogs. Forcing owners to quarter those frogs on their property without their consent would violate the Third Amendment. That is particularly so because what would be unconstitutional in pursuit of the enumerated federal function of national defense could not be “reasonable” for species protection, which is not constitutionally authorized. If the Supreme Court followed that reasoning, Weyerhaeuser v. Fish and Wildlife Services could provide a major turning point in reducing property rights abuses, making every American property owner safer from government expropriation.


Gary M. Galles is a Research Fellow at the Independent Institute, Professor of Economics at Pepperdine University, and Adjunct Scholar at the Ludwig von Mises Institute.






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