CNSNews.com
Saturday, March 31, 2001

Similar experiences have frustrated Americans for years – but, increasingly, the U.S Supreme Court and lower federal courts are doing what they can to reverse the trend, in some cases striking down rules that interfere with people's property rights.

Critics charge that property rights, protected under the U.S. Constitution, have not been enforced vigorously since the "New Deal" era of big government began in the 1930s under President Franklin Delano Roosevelt.

"You can't ever undo history," said Judge Loren Smith, senior judge of the U.S. Court of Federal Claims, during a panel discussion sponsored by the conservative Federalist Society. "But what you can do is rebuild a society based upon economic freedom."

The slow rollback of federal regulations mirrors the trend worldwide, away from the collectivist view and toward capitalism, according to Smith, appointed to the bench by President Ronald Reagan in 1985.

"We're entering a period not seen since the 1930s, when the government and courts decided that they could do whatever it was that they wanted to do," added James Huffman, dean of the Lewis & Clark Northwestern School of Law.

The panel discussion was titled "Rolling Back the New Deal: Judicial Review of Economic Regulations." The new strategy of the federal courts is a subtle but steady effort, through opinions issued in an array of cases, to restore the kind of economic liberties that the U.S. was founded on more than 200 years ago, said Richard Epstein, the noted constitutional scholar and acting dean of the law school of the University of Chicago.

"The [Justice Antonin] Scalias of the world are trying to erect walls in their opinions" to protect property rights from overzealous regulators, said Epstein. "But it is difficult to do."

A case in point was the recent 5-4 ruling by the U.S. Supreme Court in the case of the Army Corps of Engineers vs. the Solid Waste Agency of North Cook County, Ill. Federal officials had tried to declare a gravel and sand lot a wetland because of concerns that migratory birds flying south for the winter from Canada would not have a place to rest their wings and get a drink of water.

The Supreme Court struck down the federal rule, with Chief Justice William Rehnquist noting that it would "result in the significant impingement of the property rights and primary power over land and water use" of the owner of the land.

Another recent case in the Supreme Court involved Eastern Enterprises vs. Apfel, where justices decided it was unfair for the federal government to impose pension regulations on a company after it had shut down.

"The Supreme Court is taking more of these cases," said Robert Brauneis, a professor of law at George Washington University Law School and a former clerk for two of the justices now on the court. "This shows that they're interested in striking down regulations in cases with egregious facts."

Lower-court decisions – a "wetlands" case from Minnesota titled Cooley vs. United States and the case involving Florida Rock Industries vs. United States – have been judged in favor of the plaintiffs seeking to protect their property rights from federal regulations.

"We owe a lot to lower-court judges who made decisions that have changed the face of the law," said Huffman. "There are important things going on in the lower courts that we ought to pay attention to."

Epstein said during the last 70 years, jurists, prodded by FDR and then other liberal politicians, moved away from the classic, libertarian point of view that property ownership was an essential element of a person's liberty. Many federal regulations are nothing more than "mass confiscations," which violate the Constitution's prohibition on "takings," he said. A taking is when the government claims private property for its own use.

"There were a lot of misconceptions of the social sciences, like economics and the law, during the late 19th century that culminated in collectivism," said Judge Smith.

"They thought they could use the social sciences to change the world. They'd forgotten that people have rights in their property – and a property in their rights. Life, liberty and property are the fundamental aspects of a free humanity."

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