Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 26, 2007

It’s Constitutional For The Government To Harass You

by Brad Warbiany

So you buy a property. The property is free and clear. Then some bureaucrat comes along and tells you that the government has an easement on your property, but there’s no written record of it. You tell them to go screw. So they start harassing you. Is this right?

This is the subject of a case now being mulled by the U.S. Supreme Court, Wilkie v. Robbins. As R.S. Radford and Timothy Sandefur of the Pacific Legal Foundation explain in a Legal Times article, Harvey Frank Robbins is a Wyoming man who bought a ranch in 1993, “not knowing that the previous owner had agreed to give the Bureau of Land Management an easement over the land. BLM agents, however, had neglected to record the easement, so when the purchase went through, Robbins got the land free and clear.”

This clearly was the mistake of the government agents, yet they weren’t about to let Robbins off the hook when he did not accede to their request to reinstate the easement. The agents made threats against him. Justice Ruth Bader Ginsburg spoke during oral arguments “of a pattern of harassing conduct that included trespasses on this man’s lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle.”

Rather than punish government agents who have clearly abused their power, the federal government is asserting in the nation’s highest court the right of government representatives to act in this very manner.

In this case, the federal government claims that there is no constitutional right to physically exclude the government from your property, and even if there were such a right that it would offer no protection against harassment. This government argument, Radford and Sandefur explain in an amicus brief on behalf of Robbins, is “based on a disturbing and mistaken understanding of the relationship between the American people, their government and constitutional protections of private property rights. The framers of the Constitution accorded great weight to the importance of private property as a bulwark of personal sovereignty and autonomy, which not even the power of government could breach except in limited circumstances. . . . If the government were allowed to retaliate against citizens who exercise their right to exclude government agents from their land, the right itself would be extinguished.”

In a society that respected individual freedom, the agents who harassed Robbins would face prosecution. Instead, they are exonerated and the government itself arrogantly demands a right to harass individual citizens because — get this — the Constitution does not specifically forbid harassment by such officials.

They used to say that a man’s home is his castle. We’re increasingly moving towards a world where your home is simply somewhere the government allows you to live. You can pay your mortgage, you can pay your taxes, but if they want to evict you, you’d be well-advised to start packing.

We’ve built a government big enough to do all sorts of “wonderful” things for us. But this is something that Barry Goldwater warned against: “A government that is big enough to give you all you want is big enough to take it all away.”

This case is currently before the Supreme Court. To learn more, listen to today’s Cato Daily Podcast, where Timothy Sandefur (mentioned in the story) of the Pacific Legal Foundation explains why this behavior is “worse than Kelo.”

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  • Ted

    I wish I could say I was surprised, but sadly, I am not. More and more it seems that some people, both in and out of government, are forcing their way into our homes, our yards, and our lives, and tearing our rights away from us.

    It’s a sad thing, and I hope the supreme court rules for the homeowner.

    Considering the results of Georgia v. Randolph, I have high hopes.

  • http://anarchangel.blogspot.com Chris

    Honestly, I would hope that there would not need to be any kind of explanation or argument for this one…

    How this isn’t an intuitive understanding in all people… I just can’t fathom it.

    Fundamental rights of property, are so integral to our concept of freedom, liberty, and society; those who would abuse them in such a manner cannot possibly understand, or for that matter function within, our society or government.

  • William Whiteley

    Where the amicus stated the claim that hasrasment was “not speciffically forbiddden in the Constitution” then it would become a state perogative, not federal. The federal government is restricted to only those things that are specifically allowed to it in the Constitution.

  • http://www.thelibertypapers.org/2006/11/22/comrades-i-hereby-declare-the-revolution/ Adam Selene

    The real question, foundational to this case, is whether you have absolute rights over your property so long as you are a law abiding citizen.

  • http://unrepentantindividual.com/ Brad Warbiany

    Adam,

    I disagree as whether that’s a primary issue in the case. The question appears to largely center on whether the government can retaliate against you for not going along with what they ask.

    Check out this discussion at The Volokh Conspiracy:

    If the BLM did the same thing to punish Robbins for exercising his First Amendment right to criticize the agency, his Fourth Amendment right to be free of unreasonable searches and seizures by the BLM, or his right to engage in religious practices that the BLM disapproves of, the unconstitutionality of the agency’s actions would be unquestionable. Everyone agrees that these rights would be worthless, or at least gravely impaired, if government could punish people for exercising them. The same point applies to citizens’ constitutional right to avoid uncompensating takings of their property in violation of the Fifth Amendment.

    Note that this issue is separable from the question of the substantive scope of constitutional property rights. Even if you believe that the scope of constitutional property rights should be very narrow, there is still good reason to forbid the government from punishing people for exercising those (admittedly narrow) rights.

    What the BLM is doing here is no different from a a mafia protection racket. You pay your protection money (in this case sign over an easement), and if you choose not to, they’ll make sure your life is a living hell.

    The question is not whether Robbins has the right to say no to the government when they request an easement, the question is whether the government should be allowed to harass and retaliate against him for legally saying no.

  • http://www.thelibertypapers.org/2006/11/22/comrades-i-hereby-declare-the-revolution/ Adam Selene

    I’m not saying that the question is whether he can say no about the easement. One central question here is, can a government agent come onto your property if you tell the agent no and there is no reason to believe you have broken a law? Did the BLM and BIA employees have warrants? Did they have court orders? I don’t think, from reading the news stories so far, that they did.

  • http://unrepentantindividual.com/ Brad Warbiany

    Your suggesting that a central question is whether the feds have trespassed?

    I think that one of the central questions here is not whether Robbins in any way acted illegally. But as Ayn Rand once pointed out, when you make so many things illegal that it’s impossible to live without breaking a law here or there, you’re always going to be a lawbreaker. If you watch someone closely enough, you’ll find laws that they’ve broken. For example, they’ve cited him in violation of the “grazing laws”. I never knew there were grazing laws, but so be it. The suit, though, suggests that they selectively cited him and singled him out for breaking the same laws his neighbors were breaking, in an effort to harass him.

    The Supreme Court isn’t answering a question as to whether the grazing laws are Constitutional. They’re answering the question whether the selective and arbitrary enforcement of these laws, prosecuted in a way to be punitive and retaliatory to Robbins, is Constitutional.

  • http://www.thelibertypapers.org/2006/11/22/comrades-i-hereby-declare-the-revolution/ Adam Selene

    and that question boils down to, honestly, whether you own your property, or not.

  • http://www.thelibertypapers.org/2006/11/22/comrades-i-hereby-declare-the-revolution/ Adam Selene

    I recognize that the Court is trying a narrow case, but, like Kelo before it, there is a broader principle involved.

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