The Volokh Conspiracy

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Our amicus brief on Due Process Clause protection for property rights


Luke Wake of the National Federation of Independent Business and I have coauthored an amicus brief urging the Supreme Court to hear the case of Kentner v. City of Sanibel. In addition to NFIB, several other organizations have signed on to the brief, including the Cato Institute, the Owners Counsel of America, and the Rutherford Institute. The petition for certiorari (which describes the facts of the case) is available here.

The main point at issue in this case is extremely simple. In the lower court opinion, the Eleventh Circuit Court of Appeals ruled that "there is generally no substantive due process protection for state-created property rights" And in their view, virtually all private property rights are "state-created." The Eleventh Circuit did permit extremely minimal protection for property rights that were violated by "legislative" acts of the state, though even in these situations the level of protection is so low as to be nearly meaningless in most cases.

As we explain in the brief, this goes against the plain text of the Fourteenth Amendment's Due Process Clause:

The Due Process Clause of the Fourteenth Amendment bans state actions that deprive individuals of "life, liberty, or property, without due process of law…" It would be truly strange if one of the three rights explicitly listed in the text of the Clause were excluded from its substantive protections. It is inconceivable that either life or liberty could be left unprotected. The same point applies to property.

Moreover, the text is at odds with the Eleventh Circuit's arbitrary distinction between "legislative" and "executive" acts that infringe on property rights…. Section 1 of the Fourteenth Amendment indicates that "no State" is permitted to violate the Due Process Clause, regardless of which branch of state government happens to be the violator…

Courts routinely protect other rights covered by the Fourteenth Amendment against violation by all
branches of state and local government. "A State, or a city, may act as authoritatively through its
executive as through its legislative body." Lombard v. Louisiana, 373 U.S. 267, 273 (1963). There should
be no property rights exemption from this principle.

As the brief describes in more detail, the text, original meaning, and early judicial precedent on the subject all indicate that property rights were entitled to Due Process Clause protection on the same basis as the rights to life and liberty. Modern Supreme Court precedent is more ambiguous on the subject, but still extends greater protection to property rights than is available under the Eleventh Circuit's approach. Multiple Supreme Court decisions require that infringements on property rights must be supported by at least some evidence on the record, indicating that the restriction is needed to advance a legitimate state interest.

Several other circuits have adopted the same approach as the Eleventh, while others have been more faithful to Supreme Court precedent. The Court should step in and resolve that split, and ensure that property rights get at least some of the protection granted by the Due Process Clause. The Court need not definitively resolve the issue of exactly what standard of review applies. But it should at least indicate that property rights get at least some meaningful protection, and that they are not "generally" excluded because they are "state-created." The rights to life and liberty can also be dismissed as "state-created" by the same reasoning, since both are extensively regulated and defined by state law.

I recognize that some conservative jurists still argue that the Due Process Clause does not provide substantive protection for any rights, including life and liberty. But that view is not only at odds with longstanding Supreme Court precedent, but is also undercut by modern scholarship on the original meaning of the Clause. Ryan Williams' 2010 Yale Law Journal article provides a good discussion of the relevant evidence. At the very least, it is clearly inconsistent for courts to hold that life and liberty rights are entitled to extensive substantive protection under the Clause, while property rights get virtually none.