The Liberty Papers

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.”