Lucas v. South Carolina Coastal Council and Justice Scalia’s Primer on Property Rights: Advancing New Democratic Traditions by Defending the Tradition of Property

Greg Page wrote a Spring 2000 article titled "Lucas v. South Carolina Coastal Council and Justice Scalia’s Primer on Property Rights: Advancing New Democratic Traditions by Defending the Tradition of Property" for the William and Mary Environmental Law and Policy Review.

He writes, "Lucas does much more to protect individual owners than delineate when the state, without paying compensation, can or cannot prohibit their desired uses of protected property. The essence of Lucas is that, although it defines constitutional property with the democratic traditions that precede its particular acquisition, governments can never divest those traditions from individual owners without remitting "just compensation." Where government takes traditions of property with regulations or prohibitions that law-abiding individuals cannot discern in pre-existing laws, Lucas requires the state to surrender that which individuals otherwise would have had to acquire by revolution or civil strife: money and concomitant power from the public purse. The power of Lucas is that, by defining constitutional property with accessible traditions, it enables average citizens to adapt to new democratic traditions, escape from them, or replace them in their private lives. With these traditional and comparatively simple concepts, Lucas gives individuals a secure basis in accessible laws to plan steadfast lives around, and thereby change or successfully avoid, the traditions of property that their society holds dear."

 The Chamber of Commerce issued an amicus curiae brief that in support of the petitioners in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et. al.

The Chamber writes, "This case does not challenge the power of federal agencies to regulate activities that cause the pollution of interstate waterways, their tributaries, or adjacent wetlands. The pollution or filling of wetlands that are connected to navigable waters undoubtedly can have significant impacts on the instrumentalities of interstate commerce (navigable waterways) and interstate commerce itself. Congress accordingly should, and does, have ample authority over these truly interstate and commercial problems.

The case instead presents the question whether the federal government may set land-use policy for 17.6 acres of hydrologically isolated wetlands, whose only connection with interstate commerce is the fact that they are actual or potential landing zones for migratory birds. Under the "migratory bird interpretation" of the U.S. Army Corps of Engineers, the answer to that question is an emphatic yes that puts the federal government in the leading role in land-use decisionmaking for, not just this isolated plot, but every "damp depression" in the nation. The migratory bird interpretation threatens to impose Army jurisdiction over every backyard in the United States…

For reasons described below, both the spirit and letter of the Constitution’s limits on federal power are exceeded by the migratory bird interpretation. At the outset, this Court has long recognized that land-use planning is situated squarely on the State side of the line of demarcation between federal and State responsibilities. The migratory bird interpretation not only prevents States from fulfilling their role as the laboratories for policy innovation, it does so in a context where both this Court’s precedents and the lessons of experience teach that States most often know best.

But even beyond policy implications, the limitless migratory bird interpretation cannot be squared with this Court’s Commerce Clause jurisprudence. As is evident from the attenuated chain of reasoning employed by the court below—a chain so thin that it would permit unfettered federal regulation of all aspects of local affairs—the Corps’ asserted regulatory justification lacks any substantial relation to economic activity of any kind, much less to interstate commerce. The occasional use of a wetland by a migratory bird "by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms." United States v. Lopez, 514 U.S. 549, 561 (1995). Moreover, the fact that this intrusive regulation of non-economic activity has unfortunate economic side-effects cannot be used as a bootstrap to salvage the Corps’ interpretation from constitutional infirmity."


2003 The Federalist Society