by Timothy Sandefur
The U.S. Supreme Court is now considering a case (Robbins v. Wilkie) which has even more far-reaching implications than the notorious eminent domain case of Kelo v. New London. In the Robbins case, one of the question is whether the Constitution forbids government officials from punishing a person who refuses to give up his property to the government.
The facts are pretty basic: the government wanted Robbins to give up an easement against his ranch land in Wyoming. They threatened and bullied him, but he refused to sign the documents giving the easement, so they engaged in a variety of shady actions targeting him, including a criminal case that the jury rejected after only a half-hour of deliberations! Robbins then sued the government, arguing among other things that their actions violated his Fifth Amendment rights because they were retaliating against him for refusing to give up his property.
But of course your property rights include the right not to be retaliated against for standing up for your property rights. That's just what rights are. It reminds me of an old Ronald Reagan joke: what's the difference between the Soviet Constitution and the American Constitution? The Soviet Constitution guarantees freedom of speech—the American Constitution guarantees freedom after speech.
Here is the Pacific Legal Foundation’s friend of the court brief in the Robbins case. Here is the government's brief. (You'll find the argument about retaliation on pages 37-48). In addition to the government's attempt to ignore the very definition of rights, note the absurd doublethink that goes into the government's argument here: on page 38, they say, "While the Fifth Amendment is of course entitled to equal footing with the First [Amendment]…." Yet on page 37, they say (correctly) that the Supreme Court has "shown a special sensitivity to the exercise of First Amendment rights," and on page 38, that there are "legal doctrines that apply in the First Amendment context alone," and on page 39 that the Fifth Amendment "presupposes a degree of permissible governmental interference with property rights that is wholly alien in the context of [the] First Amendment…."—so which is it? Are Fifth Amendment rights entitled to equal protection with other rights, or aren't they? Of course, we know what the government's answer to that is.