Property Rights, Dolan v. Tigard

[Emsworth]

The decision was constitutionally unsound. The whole ruling was based on the doctrine of unconstitutional conditions: "the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government."

Yet, such a doctrine is decidedly incorrect. The government may, for example, require a person to give up his right to bear arms in return for access to a government building. It may compel a student to give up his freedom from unreasonable searches and seizures in return for a school locker. It may demand that a person give up his freedom of speech in return for accepting public employment. In short, it is perfectly permissible for the government to grant a discretionary benefit on the general condition that the recipient surrender constitutional rights connected with that benefit.

As Janice Rogers Brown wrote, "to the extent the doctrine of unconstitutional conditions purports to hold that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether, it seems more a figment of academic imagination than reality" (Loder v. Glendale).

I note that the benefit must be truly a discretionary one, a specific privilege for a specific person. Access to courts of law is not a discretionary benefit, for example.

In this particular case, the city wished to grant a discretionary benefit: planning permission. In return for such permission, it is perfectly entitled to demand a waiver of rights under the takings clause. It is wholly entitled to require that the owner dedicate a portion of the lot to greenways or bike paths.

I presume, of course, that planning permission is a discretionary benefit. I am making no argument about the constitutionality or unconstitutionality of zoning laws. But if we accept that general zoning laws are permissible (as the Supreme Court has done), then this particular decision is unsound.

[Emsworth]

There is a line that must be drawn. May the state force an individual to convert to Christianity in order to seek state employment?

Certainly, a line must be drawn. Here (unfortunately) we must accept some judicial discretion. As I stated earlier, the condition must be somehow related to the benefit sought. Activities unrelated to the benefit are certainly not subject to the imposition of conditions.

[Emsworth]

But Mrs. Dolan's case for quite different. The government was taking her land in a way that was absolutely disconnected from her intended use.

A requirement for the provision of a bike path alongside a parking lot, in return for planning permission, does not strike me as a condition absolutely disconnected with the intended use. In cases such as these, I would tend to defer more to the judgment of the legislative body.

[Emsworth]

Welcome to the dark side, BTW.

Thanks!

You must be logged in to read this quote.

It allows people who drive bicycles to access the store. It encourages people who wish to shop at this store to conserve gasoline and to be more environmentally friendly.

(Hmm, I suppose that, having made the above statement, I will soon be accused of being a RINO.)