Burying Property Rights; Constitution Eroded in Stop the Beach Renourishment Case

The Washington Times (Washington, DC), June 24, 2010 | Go to article overview

Burying Property Rights; Constitution Eroded in Stop the Beach Renourishment Case


Byline: Douglas Smith, SPECIAL TO THE WASHINGTON TIMES

With all of the recent government actions eroding individual property rights, the Supreme Court's decision in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection comes at a critical juncture. In Stop the Beach Renourishment, the Supreme Court addressed whether the Constitution prohibits courts from issuing decisions that effectively eliminate private property rights without providing just compensation. The case involved a challenge to a decision issued by the Florida Supreme Court authorizing local governments to create a public beach between an owner's beachfront property and the water by dumping sand along the seabed. The Florida Supreme Court held that the state owed property owners no compensation for this physical invasion of their property because the owners did not have any property rights to contact with the water in the first place.

The U.S. Supreme Court upheld the Florida Supreme Court's decision. However, it did so on narrow grounds, holding that the beach-restoration project did not interfere with any property rights under Florida law because the state owned the seabed and had the right to create new beachfront property. In doing so, the justices issued a variety of conflicting opinions regarding the more fundamental question at issue in the case: whether the Fifth Amendment's Takings Clause applies to judicial actions.

Four justices strongly endorsed the notion that the Constitution prohibits judicial takings. As Justice Antonin Scalia observed, the text could not be clearer: The Takings Clause .. is not addressed to the action of a specific branch or branches The Fifth Amendment states that the government must provide just compensation whenever it takes private property for public use. There is no exception in the constitutional text authorizing a court, as opposed to a legislature, to take private property without compensation.

The other justices did not dispute the absence of any such limitation in the text of the Constitution. However, they were hesitant to decide the question, finding that it was not necessary for resolution of the case and that there were potential complications inherent in recognizing judicial takings. For example, while acknowledging that other provisions of the Constitution, such as the Due Process Clause, prohibit courts from interfering with private property rights, Justice Anthony M. …

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