Somin in Legal Times: Adherence to Constitution Trumps Ordinary Policy Considerations

The June 25 Supreme Court decision in Wilkie v. Robbins reinforces the long-standing second-class status of property rights relative to other constitutional rights, says Professor Ilya Somin.

Writing in Legal Times, Somin explains that by denying Robbins the right to seek damages in the case, the Court undercut one of the most basic principles of constitutional law: that for every violation of a constitutional right there must be an adequate remedy. He goes on to criticize the Court's reasoning, stating that by its logic, citizens should be denied remedies for the violation of their constitutional rights anytime setting up a cause of action for a remedy would burden the government too much.

Put Out To Pasture, Points of View, Legal Times, July 30, 2007. By Ilya Somin.

"In the short run, the main effect of Wilkie is to ensure that some property owners will not have adequate remedies for violations of their constitutional rights by federal government officials. This is a potentially serious problem in Western states such as Wyoming, where the federal government has extensive landholdings and disputes between federal agents and local property owners periodically lead to violations of constitutional rights.

"More broadly, Wilkie reinforces the long-standing second-class status of constitutional property rights. In previous cases such as Kelo v. City of New London (2005), the Court often defined the scope of property rights in a much more restrictive way than is usually applied to 'noneconomic' rights such as freedom of speech and religion. In Wilkie, it ensured that even indisputable violations of constitutional property rights will be compensated less adequately than violations of other individual rights.

"At the same time, as Thomas' concurrence implies, most of the arguments for denying damage remedies for property rights violations can also be used to justify their denial for violations of other individual rights. Those who are content with the Court's relegation of property rights to second-class status should realize that the same fate may befall other constitutional rights that they value more."

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