High court lets an injustice stand

By Vin Suprynowicz
web posted April 3, 2000

Moscow rarely makes the list of the beautiful cities of the Old World. Why?

Communism -- in polite society, "socialism" or "collectivism" -- is the doctrine that there's no such thing as private property. For most of the last century, visitors could find Russian intellectuals living in charming apartments, inside buildings that appeared virtually derelict from the outside.

"Why don't you fix up the stairs, plant some flowers and give this old building a coat of paint?" the naive visitor would ask.

"What, so some party member should drive by and notice it?" their horrified hosts would cry. "What if his niece is getting married and looking for a nice place to live? One phone call, and we'd be out in the street!"

Under such a system, any property valuable enough to draw the attention of the armed thugs currently in uniform is immediately "placed into the collective care of the state for the good of the people." And then looted.

A further refinement, developed in the 1920s, allows private individuals to retain theoretical title while granting government bureaucrats final veto power over any actual use. This system -- avoiding the more brutal appearance of outright seizure, while delivering the same result -- was dubbed in Germany "national socialism," and in Italy "fascism."

Americans feel superior to such nonsense. Here, one of the realizable dreams of the middle class has long been private property ownership -- with private owners also financially motivated to keep up their properties, to increase re-sale value.

But do we still have private property in America, really?

Take San Francisco. Please. Housing prices now exceed the reach of the average working person, in part because the political class bars private development of much of the land. (Wouldn't want to turn over the old Presidio to some greedy private home developer. He might use it to make a profit.

Then, property taxes -- "rents" to the government for land supposedly privately held -- are jacked up, supposedly punishing only "the greedy rich." Try to pass the levies on to the tenants, and the landlord quickly faces the further refinement of "rent control."

Finding all your capital thus tied up, in a locale quickly falling under the heavy hand of state socialism (pardon me, "enlightened land-use policy") what would you do?

Claude and Michelline Lambert had an idea. The Lamberts own a small Victorian rooming house in San Francisco, which currently houses long-term renters. The Lamberts decided they could do better converting the building into a small tourist hotel.

Of course, they had to apply for a city "permit."

Always deft at counting votes, the politicians decided it would be nicer if the Lamberts were to continue renting to their current tenants.

But California is not an outright communist state, so the city fathers couldn't simply seize the Lamberts' property, or outright forbid them a legal land use.

Instead, the city informed the couple there would be a modest "permit fee" for converting their premises to a small hotel -- $600,000.

The Lamberts offered $100,000, but no more. With the help of the The Pacific Legal Foundation, they then sued the city under the Fifth Amendment, which forbids the government from taking private property without paying just compensation.

Pitifully, the U.S. Supreme Court voted 6-3 last week not to review the case (Lambert vs. City of San Francisco), allowing the extortionate $600,000 fee to stand -- with Justices Scalia, Kennedy, and Thomas in dissent.

Recently, the high court had issued some encouraging rulings, holding that when building or zoning codes become so onerous as to effectively prohibit an otherwise legal use, a regulatory "taking" -- whole or partial -- has occurred. In such circumstances, the court has encouragingly held, the government entity in question must compensate the land owner -- pay for what it takes.

This has evoked much squawking from the central planners along America's Main Streets, who were quick to realize how very many property rights they routinely crush, and how long a line might soon form at the cash register.

While this week's high court vote does not undo those good rulings, it does indicate the court may be stepping back from its earlier, forceful defense of property rights.

Those who favor such restraint brand such rulings "judicial activism." But activism in reducing illegitimate state power is precisely what the court is supposed to practice.

At least, so long as our elected officeholders keep taking their cues from the former occupants of the Kremlin, the Reichstag, and the Palazzo Venezia.

It appears Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor led last week's cowering. Let us hope they soon regain their courage -- or that an enlightened new president soon finds the opportunity to place the court under the guidance of a firmer defender of the Bill of Rights -- someone more like Clarence Thomas.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available by dialing 1-800-244-2224; or via web site http://www.thespiritof76.com/wacokillers.html.

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