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Long-Standing Rule

August 30, 1987

With all due respect, Ronald K. L. Collins' depiction of the U.S. Supreme Court's treatment of the "taking" clause of the Fifth Amendment, in his Aug. 16 Viewpoints column ("If Confirmed, Bork Could Become Business' Hero") bears not even a casual resemblance to legal or historical reality.

It was not "the Rehnquist Court" that somehow changed legal doctrine by holding in the Lutheran Church case that the "just compensation" clause of the Fifth Amendment requires payment for governmental takings of private property. That rule was established by a unanimous Supreme Court in an opinion written by Justice Louis Brandeis (hardly a political conservative) in a 1932 decision. That principle was applied to local land-use regulations in 1982 by Justice William J. Brennan Jr. in his celebrated dissent in the San Diego Gas & Electric Co. case. It was thus Brandeis' and Brennan's view that was endorsed by an almost unanimous court in the Lutheran Church case, with only Justice John Paul Stevens dissenting on that point.

The court's liberals and conservatives concurred in the Lutheran Church case--and with good reason. Collins' quite evident hostility to business notwithstanding, it is clear that in the final analysis there can be no real liberty without individual property rights being protected against an overreaching government. There is no country that I know of where a high degree of personal and political liberty does not correlate strongly with a similarly high degree of economic liberty.

This is the pragmatic lesson of history that a society disregards at its peril: A citizen whose material well-being can be snuffed out by an irresponsible government is not likely to espouse ideas that displease his rulers. That is why--as Justice Potter Stewart put it over a decade ago in the case of Lynch vs. Household Finance Co.--the dichotomy between personal liberty and property rights is a false one; they are interdependent, and neither can have meaning without the other.

GIDEON KANNER

Professor of Law

Loyola Law School

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