In the famous 1803 case of Marbury v. Madison, Chief Justice John Marshall wrote, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Marshall made two simple yet profound points about liberty in a political society. First, laws confer legal rights. Second, when those rights were violated, the protection of the laws required legal means for the injured to pursue a remedy.
In Knick v. Township of Scott, decided last Friday, the Supreme Court affirmed both principles. The case concerned Rose Mary Knick, who lived on a farm in Scott, Pennsylvania. That property included a graveyard which she believed inters her neighbor’s ancestors. In 2012, the Township of Scott passed an ordinance requiring “all cemeteries … be kept open and accessible to the general public during daylight hours.” The ordinance included private burial grounds like Knick’s. A local official in 2013 then told her that, in compliance with the order, she must allow daytime public access to her graveyard.
Knick sued, arguing that the ordinance violated the Fifth Amendment’s Takings Clause. This clause stated that private property cannot “be taken for public use, without just compensation.” Though the township did not remove her property, the Supreme Court has interpreted the clause also to forbid what it called “regulatory takings.” In such instances, government doesn’t literally remove your property. But it does so regulate your property as to severely undermine or eliminate your ability to use it.
This case did not decide whether, under the Takings Clause, Knick deserved to win. Instead, it concerned where she could make her claim that she should. Under the Civil Rights Act of 1871, persons must possess recourse to “a federal forum for claims of unconstitutional treatment at the hands of state officials.” (For constitutional purposes, local governments are considered subsets of the states.) That recourse included assertions that the local government violated one’s Fifth Amendment property rights.
But the Supreme Court found that two of its own precedents undermined this legal recourse. In Williamson Regional Planning Comm’n v. Hamilton Bank of Johnson City, the Supreme Court declared in 1985 that no one can bring such a claim into federal court “until a state court has denied his claim for just compensation under state law.” A 2005 decision then added that a state court’s decision on the Takings Clause “generally has preclusive effect in any subsequent federal suit.”
In other words, to sue in federal court, you first have to lose in state court. But to lose in state court basically eliminates your chance to make your case in federal court.
Chief Justice John Roberts, in a 5-4 majority opinion, noted that this setup presented a Catch-22 for litigants like Knick. It did so by violating the second of Marshall’s principles, eliminating a legally given means to “claim the protection of the laws” against possible injury.
Roberts then showed that Williamson on its own violated Marshall’s first principle as well, changing the legal rights conferred by the Fifth Amendment. Williamson defended its requirement for litigants like Knick to exhaust action in state courts through its reading of the Takings Clause. Those justices said that someone like Knick “has not suffered a violation of his Fifth Amendment rights — and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law.” So, a litigant’s Fifth Amendment rights weren’t infringed upon until the state court refused to enforce a claim against the state.
Roberts deftly pointed out the problem with this reading; Williams confused the substance of a right with a remedy for its violation. You possess the constitutional right barring government from taking your property except by the rules found in the Takings Clause. Government infringed upon your property rights the moment it did anything to the contrary. A state court decision forcing payment merely remedied the previous violation of that right. Then, in redefining what violated the Takings Clause, Williamson redefined the constitutional right itself. And a legal right redefined was a right removed. It took away the legal right originally conferred.
The majority in Knick corrected this interpretation. In the process, it affirmed a constitutional right and restored a remedy for its injury.
I think John Marshall would be pleased.
Adam Carrington is an assistant professor of politics at Hillsdale College.
