By Kyle Scott
In the case of Stop the Beach Renourishment v Florida the question is raised as to whether the state of Florida's effort to renourish a seven mile stretch of beach near Destin, FL is a regulatory taking and therefore requires conformity with the Fifth and Fourteenth Amendments of the U.S. Constitution. Shore renourishment is when sand is dredged up from the ocean's bottom and redistributed along an eroded shore front. In this case, the shore would be widened by 210 feet. The government will take ownership of the newly renourished land, which then sparks concern among affected property owners. By renourishing the beach and taking ownership of the new land the state has affectively transformed the nature of the owner's property in that it is no longer waterfront property which could diminish the value of the home that once sat on a private beach at the water's edge to which the owner had direct access. If the U.S. Supreme Court agrees with the holding of Florida's court of last resort then this becomes the most recent in a series of takings cases, including most notably Kelo v. City of New London (2005), in which the Supreme Court has weakened the rights of property owners.
The weakening of property rights in the U.S. is symptomatic of a larger problem. We will not know until the winter term whether the Supreme Court will agree with Florida, but we do know that recently, the Supreme Court has found it proper to deprive property owners of their rights. When property is placed in its proper historical and philosophical context we recognize that the threat goes beyond property given the unity of rights expressed by the founding generation and their intellectual forerunners. Rights that were once thought inalienable--such as life, liberty, and property--have become just the opposite; everything is up for grabs. When we allow politicians and the courts to decide for us what our rights are, we put our rights, and ourselves, at risk. Citizens adversely affected by the government have little choice but to press their rights through the judiciary, but the judiciary cannot be the final arbiter of rights for they too can error in their judgment. The court is allowed to determine what our rights are because too few pay attention to its decisions; therefore, when it sides with a government enacted policy, such as a regulatory taking, there is no check on the court's action. A system of checks and balances fails to do either if the branches are in agreement. Nothing less than a fully engaged citizenry that is willing to voice its opposition through means beyond voting will do. If we are not willing to place the final check on government action then we deserve to have our rights gradually taken from us.
Kyle Scott, University of Houston, author of Dismantling American Common Law: Liberty and Justice in Our Transformed Courts and the forthcoming The Price of Politics: Lessons Learned from Kelo v. City of New London. Both books are published by Lexington Books.
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