Nevertheless, next Tuesday in the Supreme Court, the government of ostensibly conservative Texas, abetted by what is considered the most conservative of the 13 federal appellate courts, will make a radically unconservative argument. The argument will reflect misunderstandings of the Bill of Rights and the 14th Amendment.
Richard DeVillier’s case raises, according to Robert J. McNamara of the Institute for Justice, which is representing him, this question: Does the Constitution matter if states can evade its stipulations? The facts of the case are as undisputed as the pertinent constitutional provisions should be.
Texas’s Transportation Department has renovated a portion of Interstate 10 with a construction that has caused devastating floods on DeVillier’s farm east of Houston and others nearby. Texas does not dispute that the flooding was an intended consequence of the highway’s changed configuration, which was designed to function as a dam to keep one side of the highway passable during and after torrential rains. This was supposed to create a vast storm water detention pond on the other side.
Texas has responded to the regular flooding of farmland by refusing to alter the dam, or even to allow DeVillier to mitigate, using his backhoe, the damage the dam does. And Texas has not yet disputed the obvious — that this constitutes a “taking” of DeVillier’s land for a “public use.” Instead, Texas got the suits by DeVillier and other injured farmers removed to a federal court, where the state argued that they are not entitled to sue the state unless and until Congress enacts a statute allowing such suits under the Fifth Amendment.
That amendment is, however, a model of emphatic clarity: Private property shall not be taken “for public use, without just compensation.” Compensation is not contingent on anything other than the amendment, whose 809-year-old pedigree traces to Magna Carta in 1215.
A magistrate judge sided with the property owners, denouncing Texas’s “pretzel logic” that shreds “hundreds of years of Constitutional law in one fell swoop.” The logic would allow states to take property, avoid paying compensation and leave the injured owners with no federal remedy for a constitutional violation. The judge said the Fifth Amendment “springs to life when the government takes private property.” It is “self-executing” — no congressional permission is necessary — and “expressly dictates a remedy.”
A district court affirmed the magistrate’s reasoning, but the Fifth Circuit reversed, ignoring the fact that the 14th Amendment was written to protect individual rights against the states. Texas’s conservative government is saying:
Trust us, we revere property rights. Trust us to protect them. Trust us to give just compensation for takings. But because Congress has never authorized individuals to sue states, there is no federal recourse for citizens when a state says that complying with the Fifth Amendment’s takings clause is optional.
Amazingly, 233 years after the Fifth Amendment and 156 years after the 14th Amendment were, respectively, added to the Constitution, the Supreme Court must swat away Texas’s contention that it cannot be sued in federal court absent Congress’s authorization. As though the 14th Amendment were written to enhance Congress’s power rather than to protect individuals’ rights.
The amendment stipulates that “No state shall make or enforce any law that shall abridge the privileges or immunities of citizens.” This language, written to protect freed Blacks from oppression by states, was intended to protect everyone’s rights that are fundamental to national citizenship.
But in 1873, the Supreme Court, in a blunder Texas is exploiting 151 years later, eviscerated the privileges or immunities clause. The court construed it to refer not to enumerated constitutional rights, or to unenumerated rights retained by the people (see the Ninth Amendment), but only to a few obscure federal rights. Since then, the 14th Amendment’s due process clause has been cited, often awkwardly, to protect some rights of national citizenship.
The authors of the Fifth and 14th amendments thought democracy works best when leavened with distrust. Indeed, the entire Constitution is a resounding affirmation of this foundational conservative proposition: Prudence dictates perpetual distrust of the idea that majoritarian institutions can be trusted to adequately protect individual rights. Come Tuesday, the eyes of conservative Texas should be averted in embarrassment.
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