▪ More on Wilkie: Is Property A Personal Constitutional Right?

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high court will have to decide whether the 5th Amendment, like the 1st and the 4th, protects citizens from unlawful retaliation for exercising a presumed right.

I'd say that's just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It's all right there in the Fifth Amendment, which provides "nor shall private property be taken for public use, without just compensation."  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." 

In Lynch v. Household Finance Corp., 504 U.S. 538, 552 (1972), the Court recognized the wholistic nature of constitutional rights, stating “[t]he dichotomy between personal liberties and property rights is a false one.”  One of the issues in Wilkie is whether the "right to exclude" that is the key component of a property right is "clearly established."  You might think, given the above, that this proposition is so far beyond argument that it would not be at issue. 

Indeed, if you examine other provisions of the Bill of Rights, you can see that the protection of individual liberty and the security of property from intrusion by both government and others go hand in hand.  For example:

• Third Amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
• Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...”
• Fifth Amendment: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”)
• Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
• Lawrence v. Texas, 539 U.S. 558, 562 (2003):  “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.  In our tradition the State is not omnipresent in the home.”
  

R.S. Radford and Timothy Sandefur have posted "This Is My Land," a commentary on the issues in the case at Legal Times:

    It’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects — thus, in Blackstone’s words, “abridging man’s natural free will.”

My guess is the Court will see it that way, also.