Yesterday, in Wilkie v. Robbins, the Supreme Court held, 7-2, that a landowner cannot maintain a private cause of action for damages against federal government employees who engage in a campaign of "harassment and intimidation aimed at extracting an easement across public property." The dissent maintained that the Court majority failed to safeguard the "bedrock constitutional right" protected by the takings clause of the Fifth Amendment, which provides that private property cannot be taken for public use without just compensation. If government agents may retaliate against a private landowner who does nothing more than assert his constitutionally protected property rights, and face no legal consequence, property rights will be less secure.

The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking.

Perhaps the most interesting thing about this passage is that it was authored by Justice Ruth Bader Ginsburg, and joined by Justice Stevens. Both were in the Court's majority in Kelo v. New London, and both have voted fairly consistently against the Fifth Amendment takings claims over the past decade. Yet in Wilkie v. Robbins, Justices Ginsburg and Stevens were most sympathetic to the claims of the aggrieved property owner.

See here for Ilya's and my prior posts on the Wilkie case.