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 courtโs 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 โtakeโ on Supreme Court cases is frequently unreliable. The narratives pushed by nationally reported expertsโconservative as well as liberalโoften 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, Iโll be assessing each case from the standpoint of whether it applies the Constitution correctly. And by โthe Constitutionโ 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.
Someone Didnโt Pay Her Taxes!
Geraldine Tyler owned a condominium unit in Hennepin County, Minnesota. She didnโt 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 countyโs 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 โtakingโ 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 justifiedโan unfair โforfeiture.โ
But for many years before I switched full-time to constitutional law, I practiced municipal law; practiced,ย 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 Iโm not so sure the result was just.
Was The Result Just?
Justice rewards personal responsibility and punishes irresponsibility. The taxes on Tylerโs 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 yearsโmaybe 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.ย My motherย (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, theyโre 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 thereโs another factor: The Minnesota forfeiture statute wasnโt new. The county didnโt 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 courtโs decision allowed her to benefit from the lower price and from application of the rule to othersโbut 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 โTakings Clauseโ of the Fifth Amendment, which is part of the Bill of Rights (ratified in 1791). The Takings Clause says โnor shall private property be taken for public use, without just compensation.โ However, as the great Chief Justice John Marshallย 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 โprivileges or immunitiesโ of U.S. citizens. The terms โdue process of law,โ โprivileges,โ and โimmunitiesโ appear earlier in the Constitution. As the Founders understood it, โdue processโ means if the government proceeds against you, it canโt make up the rules as it goes along. The Founders understood โprivilegesโ and โimmunitiesโ to be certain important entitlements created by law, such as trial by jury (pdf).
The amendment doesnโt address โtakingsโ 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 โincorporatesโ 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 evidenceโmost of it very weak or taken out of contextโand they largely disregard the text and structure of the Constitution itself.
The Tyler case exemplifies one reason those who claim the current court is โconservativeโ areย simply wrong: The court continues to apply a great deal of erroneous liberal precedent.
The GorsuchโJackson Concurrence
Justices Neil Gorsuch and Ketanji Brown Jackson issued a concurring opinion. They argued that, in addition to violating the Takings Clause, Minnesotaโs forfeiture law violated the Eighth Amendmentโs Excessive Fines Clause (โExcessive bail shall not be required, nor excessive fines imposed โฆโ).
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. Itโs an entirely separate guarantee, as the Constitutionโs text makes clear.
Conclusion
If I were a Minnesota lawmaker, I wouldnโt have voted for the forfeiture law. But the fact that a law is bad doesnโt make it unconstitutional.
The Tyler case also shows why itโs profoundly misleading to label this bench or its six non-liberal justices as โconservative.โ Protecting property from unfair taking looks conservative. But other aspects of the case look anything but.
To hear an audio of this file,ย please click here.
This columnย first appearedย in the June 6, 2023ย Epoch Times.
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