Property is property

The Due Process Clause of the Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property without due process of law.” Reading this clause, one would assume that “property” includes real property (i.e. land), right? Not so fast. Courts nationwide are in disagreement about whether “property” means, well, property.

PLF filed this amicus curiae brief in the Second Circuit, asking the court to recognize that the Due Process Clause of the Fourteenth Amendment means what it says: That property cannot be denied without due process of law.

The conflict among courts stems from a 1972 Supreme Court case, Board of Regents of State Colleges v. Roth. In that case, the Supreme Court held that the Due Process Clause’s use of the word property includes certain government benefits, like welfare and employment. It reasoned that these benefits have become so important in modern society that they resemble traditional property and individuals should have due process protections before the benefits are taken away. But in order to ensure people cannot claim everything under the sun as property deserving of due process protection, the Supreme Court created the “entitlement test.” To determine whether a government-created benefit is property, courts ask whether state law secures an entitlement to it.

Some courts have wrongly assumed that the entitlement test limits due process protections for traditional property. Roth‘s recognition of a new class of property, however, did not roll back traditional property conceptions, like ownership in land. These traditional property interests are protected by the Due Process Clause without qualification. Nothing in Roth suggests that land isn’t property. The Third and Ninth Circuits recognize that logic dictates that land is property. The Ninth Circuit has described Roth as a “one-way ratchet:” while Roth recognized that there are new property interests, it did not roll back traditional property rights.

If the Ninth Circuit’s position is rejected, the Due Process Clause would cease to function. The provision expressly forbids the government from “depriving” people of property without due process of law. Yet the fact that the government could deprive you of your property would be a defense to a due process claim. For example, if a state does not have a law protecting land ownership, one would not be entitled to due process protections because state law does not secure an entitlement to the use or ownership of it. This makes no sense.

The Due Process Clause undoubtedly protects land. This needs to be remembered when courts consider the scope of due process protections.