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The Supreme Court’s New Decision on ‘Taking Property’

The Supreme Court’s New Decision on ‘Taking Property’

To hear an audio of this file, please click here.

This column first appeared in the June 6, 2023 Epoch Times.

In the next few weeks, the Supreme Court will be finishing up its October Term. The term gets its name from the fact that it begins Oct. 1. The next few columns will unpack some of the court’s most important decisions.

I will be focusing mostly (although not entirely) on cases interpreting the Constitution rather than on cases interpreting federal law.

It may not surprise you to learn that the media “take” on Supreme Court cases is frequently unreliable. The narratives pushed by nationally reported experts—conservative as well as liberal—often are unreliable as well. This is because their understanding of the Constitution is often limited, and because many have political agendas that cloud their analysis.

In addition to other comments, I’ll be assessing each case from the standpoint of whether it applies the Constitution correctly. And by “the Constitution” I mean the document as understood when it was ratified, together with all duly adopted amendments.

Accordingly, my analysis often will be very different from what you see elsewhere in the press, including in this newspaper.

Someone Didn’t Pay Her Taxes!

Geraldine Tyler owned a condominium unit in Hennepin County, Minnesota. She didn’t pay her real property taxes for at least six years. Eventually, she owed $15,000 in taxes and penalties. The county foreclosed on her unit.

The county sold the unit for $40,000. Following Minnesota state law, the county kept all $40,000. It did not return to her the $25,000 difference between the sum she owed and the sum the county received. She claimed the county’s conduct was unconstitutional. The case is Tyler v. Hennepin County (pdf).

On May 25, the justices unanimously agreed with her. They ruled that keeping the extra $25,000 was, at least for purposes of this dispute, an unconstitutional “taking” of her property. Chief Justice John Roberts wrote the opinion.

My first instinct was to cheer. Tyler is 94 years old, and (it seemed to me) the county was trying to rob an elderly lady by taking far more than justified—an unfair “forfeiture.”

But for many years before I switched full-time to constitutional law, I practiced municipal law; practiced, wrote, and taught extensively in real estate law; and was involved in the real estate markets in other ways. With that background, I scrutinized the case further. Now I’m not so sure the result was just.

Was The Result Just?

Justice rewards personal responsibility and punishes irresponsibility. The taxes on Tyler’s unit were very moderate. She knew about real estate taxes, since she had paid them earlier. After she stopped paying, she must have received many notices that her taxes were overdue. But she ignored her responsibility for at least six years—maybe longer.

What about her age? The court said she is 94, but her neglect began years ago. More importantly, the court never said she was mentally impaired. My mother (to cite one contrasting case) wrote all the checks for her property taxes until shortly before her death at age 101.

The court intimated that family members took an active role in assisting Tyler. Indeed, they’re likely the real beneficiaries of this decision because they will inherit her property after her death. But these family members also ignored her tax bills.

Then there’s another factor: The Minnesota forfeiture statute wasn’t new. The county didn’t spring it on Tyler. The statute had been in effect since 1935. Since the property was a condominium unit and there were almost no condominiums in the United States until the 1960s, the forfeiture rule almost certainly was on the books well before she purchased her unit.

That rule, like other aspects of real estate law, was reflected in the price she paid for her unit. In all likelihood, it lowered her price. Moreover, its application to other defaulters arguably reduced her own property tax bills.

So the court’s decision allowed her to benefit from the lower price and from application of the rule to others—but then allowed her to flout the rule herself.

Was This Result Correct Under the Constitution?

The Constitution reserves the primary governance of real property to the states (pdf), so for a federal entity to intervene it must have a constitutionally grounded reason for doing so. The court cited as its reason the “Takings Clause” of the Fifth Amendment, which is part of the Bill of Rights (ratified in 1791). The Takings Clause says “nor shall private property be taken for public use, without just compensation.” However, as the great Chief Justice John Marshall once ruled, the Bill of Rights was designed to regulate only the conduct of the federal government, not that of states and localities.

Other parts of the Constitution address state governments. One is the Fourteenth Amendment, which was ratified in 1868. It requires states to guarantee equal protection of the law, due process of law, and the “privileges or immunities” of U.S. citizens. The terms “due process of law,” “privileges,” and “immunities” appear earlier in the Constitution. As the Founders understood it, “due process” means if the government proceeds against you, it can’t make up the rules as it goes along. The Founders understood “privileges” and “immunities” to be certain important entitlements created by law, such as trial by jury (pdf).

The amendment doesn’t address “takings” at all.

But the court insisted that the Fourteenth Amendment applied the Fifth Amendment Takings Clause to the states through a legal theory called the incorporation doctrine. The incorporation doctrine is the view that the Fourteenth Amendment “incorporates” all or most of the Bill of Rights against state governments. This view was developed mostly by liberal justices during the 20th century.

Volumes and volumes have been written to justify the incorporation doctrine, but authors have uncovered almost no direct evidence that the state lawmakers who ratified the Fourteenth Amendment understood the amendment that way. Instead, authors rely on circumstantial evidence—most of it very weak or taken out of context—and they largely disregard the text and structure of the Constitution itself.

The Tyler case exemplifies one reason those who claim the current court is “conservative” are simply wrong: The court continues to apply a great deal of erroneous liberal precedent.

The Gorsuch–Jackson Concurrence

Justices Neil Gorsuch and Ketanji Brown Jackson issued a concurring opinion. They argued that, in addition to violating the Takings Clause, Minnesota’s forfeiture law violated the Eighth Amendment’s Excessive Fines Clause (“Excessive bail shall not be required, nor excessive fines imposed …”).

Treating the $25,000 forfeiture as an excessive fine does make more sense than treating it as a property taking. The problem with the concurring opinion, however, is that the Eighth Amendment Excessive Fines Clause is no more part of the Fourteenth Amendment than is the Takings Clause. It’s an entirely separate guarantee, as the Constitution’s text makes clear.


If I were a Minnesota lawmaker, I wouldn’t have voted for the forfeiture law. But the fact that a law is bad doesn’t make it unconstitutional.

The Tyler case also shows why it’s profoundly misleading to label this bench or its six non-liberal justices as “conservative.” Protecting property from unfair taking looks conservative. But other aspects of the case look anything but.

Rob Natelson