In Wilkie v. Robbins, Justice Souter's majority opinion denied the plaintiff a damage remedy for the government's attempts to harass him into giving up his property rights without compensation, despite the fact that the latter is an obvious violation of the Takings Clause of the Fifth Amendment.

As Jonathan Adler points out, Souter has a hard time distinguishing this case from other instances of government retaliation for exercising a constitutional right where he believes that a Bivens damage remedy is acceptable. He claims that the key difference is the motive for the government's action:

[U]nlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.

Thus, seeking to acquire land is a "legitimate" government purpose, while punishing an individual for antigoverment speech is not. The problem is, however, that constitutional rights regulate not only the ends that government may pursue, but also the means that it can use to achieve them. In Wilkie, the government's desire to acquire an easement onto Mr. Robbins' property was not in and of itself unconstitutional. However, the effort to achieve this purpose by using coercion and harassment to force the owner to give up the easement without compensation was an unconstitutional means to an otherwise legitimate end.

To take up Souter's First Amendment analogy, it is perfectly legitimate for government officials to try to stimulate public support for their policies. It is not legitimate, however, for them to use the suppression of opposing speech as a means to this end. If they punish antigovernment speakers for their speech, Justice Souter surely would not deny the victims a damage remedy simply because the government's ultimate purpose (increasing public support for its policies) was not in itself unconstitutional. Yet he fails to draw the obvious parallel conclusion in the property rights context. For that reason, his opinion realizes my fear that a victory for the government in this case would reinforce the second-class status of constitutional property rights.

Souter further argues that the government's actions were just an instance of "hard bargaining" to achieve a legitimate end. Government agents repeatedly trespassed on the Robbins' property and harassed his customers (including, as Justice Ginsburg points on in her dissent, videotaping female customers in the act of relieving themselves). Justice Souter himself, while ignoring some critical facts, described the Bureau of Land Management's actions as a a massive six year long campaign against Robbins amounting to "death by a thousand cuts." If the BLM had engaged in the same kind of "hard bargaining" in order to get Robbins to stop criticizing BLM policy or to consent to an otherwise illegal search of his house, Justice Souter and his colleagues in the Wilkie majority would not think of denying him a damage remedy (at least not because the government's ultimate purposes were "legitimate"). Here too, the second class status of property rights rears its ugly head.

Scalia and Thomas are exceptions to this generalization about the majority justices. They would abolish Bivens damage remedies almost entirely, whether the rights violated by the government are property rights or not. The Thomas-Scalia approach is, in my view, deeply flawed. However, it does have the virtue of treating property rights and other rights the same. All would be underprotected to more or less the same degree. If time permits, I hope to do a more thorough critique of the Thomas-Scalia position in a later post.