By Justice Sandra Day O'Connor

Recorded remarks for the Eighth Annual Brigham Kanner Property Rights Conference in Beijing, China

October 14, 2011

Type: Speech

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Greetings. Let me begin by saying how much I regret that I'm not able to be with you to join you in attending the eighth annual Brigham can or property rights conference. It's jointly sponsored by Ching Hua University School of Law, and William and Mary law school. And I'm very honored to have been chosen to receive the Bingham Kanner property rights prize at this special conference. It's wonderful that this year's conference and the property rights prize are being held in collaboration between these two wonderful law schools. Shanghai University, one of the oldest universities in Asia, is celebrating its 100th anniversary this year. Now that's even a little bit older than I am. And that's saying quite a bit.

Now, one of China's preeminent universities shame law has produced many prominent legal scholars, judges and lawyers, who are playing very important roles and the development of economic and social policy. William and Mary law school was the very first law school in the United States. It was founded in 1779. At the request of then Virginia Governor Thomas Jefferson, he wanted it for the purpose of training leaders for our new nation. The law school's first professor was George Wythe. He was one of the signers of the Declaration of Independence, and he was one of the most distinguished lawyers in 18th century America. William and Mary has a tradition of encouraging discussion about property rights, and other fundamental constitutional principles.

Now, Thomas Jefferson also had a very big influence on America's understanding of property rights. Thomas Jefferson was the main author of the Declaration of Independence in our country. His ideas, like those of many of his fellow revolutionaries, were influenced by the philosophy of individual rights that was described by John Locke. John Locke wrote his Second Treatise on Government. He wrote that people form governments in order to unite for the mutual preservation of their lives, liberties and estates, which I shall call by the general name, property. Locke continued that whenever legislators endeavor to take away and destroy the property of the people, they put themselves into a state of war with the people.

Jefferson also wrote that, "Governments are instituted among men to secure their rights, and that whenever any form of government becomes destructive of these ends, it is the right of people to alter or abolish it." Now, there are many reasons why the United States has thrived and prospered for now over two centuries, since the Declaration of Independence set our nation out on its course. One primary reason has been our belief in the fundamental ideals that were embodied in the Declaration of Independence, as well as spelled out in our Constitution and our bill of rights. through good times and bad, through war and peace, and through enormous social and economic changes, good times and bad. We've held these ideals very close to our hearts.

Our Bill of Rights, adopted in 1791, includes a provision saying, "No person shall be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use without just compensation." This provision has created a certainty and expectations, a foundation upon which the affairs of individuals and businesses can be solidly built in a way of defining the boundary between government and its citizens.

China also has a provision in its constitution, it was added in 2004. It provides for the protection of property, it states that citizens' lawful property is inviolable, and the state may in the public interest and in accordance with law, expropriate or requisition private property for its use, and shall make compensation for the private property expropriated or requisitioned. This constitutional provision is now being implemented through a landmark property law passed here in 2007 for the purpose of promoting China's economic system, for maintaining the order of its market economy under its political system, and for protecting property rights of individuals.

Now, courts, of course on understand that property rights are not just abstractions, they are the rights of people, of individuals. Acknowledging the influence of John Locke and others, our US Supreme Court wrote a few years before I joined the Court, it said this:

Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a personal right. ... In fact, a fundamental interdependence exists between the personal right to liberty, and the personal right in property. Neither could have could have meaning without the other. That rights and property are basic civil rights has been recognized a long time.

In the United States, rights and property do not belong just a large corporations and developers. They belong to all the people, from a widow with a small home to farmers and ranchers and small businessman to urban apartment dwellers. Our Constitution is equal in its respect for the rights of all these people. It has long been a fundamental tenet of our constitution, that all of us have certain civil rights. And if that were not the case, then the rights of none of us would be safe.

In the United States, our respect for civil rights, including property rights, puts the flesh and blood on the infrastructure of our government. I began my own career in public service as a legislator in my home state of Arizona. Eventually, I became a justice on the United States Supreme Court. I've been both humbled and honored to be given this trust and the opportunity to dedicate myself to the cause of liberty. Both as a legislator at one time and as a justice, I tried to ensure that the machinery of government is informed by our deep traditions, and our respect for individual liberty.

Over the years that I served on the Supreme Court, the court had a number of opportunities and challenges. In some cases, we faced the difficult task of ensuring that the necessities of governing did not impinge on the individual rights of people. As Alexander Hamilton wrote in the Federalist Papers number 78, "The Supreme Court is an intermediate body between the people and the legislature, in order among other things to keep the latter within the limits assigned to their authority."

Now, it's true of our Supreme Court, that all people rich, poor, powerful and powerless have a chance to appear before the Court to present their case. In fact, some of our most significant cases on property rights have involved people of very limited means, from Patrick and Marilyn Nolan, who wanted to build a home on their property along a California beach, to the widow Bernadine Suitum, who simply wanted the right to get compensation when she was not allowed to build a house on her property at Lake Tahoe . Or to Wilhelmina Dery, another window, who struggled to keep her home safe from a developer's bulldozer.

Our Supreme Court in these cases use the legal problems of these ordinary citizens to define rights and property for all of our citizens. The cases that have come before the court have allowed us in time to reinforce a regime of stable and robust property rights, while at the same time setting out the proper role of government in regulating the exercise of those rights for the public good. The law of property rights in America is built up case by case using the facts of each particular situation to shed light on a new problem.

Over time, legal principles come out of that. They are refined, they're adapted to new circumstances, and they're given meaning through experience. Let me give just a very few examples. In Nolan v. California Coastal Commission, the Supreme Court decided to case brought by Marilyn and Patrick Nolan. They wanted to build a home on their property along the California coast. The local permitting authority demanded that the Nolan's give the public an easement across their property on the beachfront so that the public could reach the beaches in the north and south, before the city would give the Nolans a permit to build. The Supreme Court held that the landowners could not be forced to convey an easement to the public as a condition of their permit to build without payment of compensation to the landowner for that ramp. And we explain that no essential nexus existed between the permit requirement and the state's legitimate interest in protecting public rights, and that died lands from unreasonable interference by private beachfront landowners. Because the Nolan's construction of a new house would not have such an impact, we found that demand to be an unconstitutional violation of their property rights.

A few years later, we ruled in the case of Dolan v. City of Tigard, that a widow who was trying to expand a family plumbing supply store could not be forced to give up land to build a bicycle and pedestrian path, as well as the public greenway, through the property. We held that while expanding the store might have some impact on traffic and on the floodplain, the government's demands were just not proportional to that impact.

The courts have guarded the right of individuals to sue their government when they alleged violation of their property rights. In Suitum v. Tahoe Regional Planning Agency, the Supreme Court took up the case of an elderly widow. She wanted nothing more than to build a small home for her retirement years. The local government, however, would not let her build and would not let her get just compensation for her useless land unless she first went through a complicated exercise of seeking credits that she could try to sell to other landowners. The Court said, "That's enough," and ruled that she should have her day in court.

Now, we've not always ruled in favor of the landowner. It sounds like we have, but we haven't. There are times when the balance tilts in favor of the needs of the government. For example, in Yee v. Escondido, an owner of a mobile home park claimed that a rent control regulation was the equivalent of a physical invasion and was a taking of his property. I wrote an opinion for the Court in that case that rejected those arguments, noting that the owner could use his property for other uses and purposes if he wasn't satisfied with the amount of the rents.

The members of our Supreme Court are not always have one mind on these things. Sometimes the justices disagree with one another. There are dissenting opinions at times. And while we all try to be faithful to our Constitution, and to protect the rights of citizens, the justices do not always agree on how to achieve that goal, or even sometimes on the precise nature of those rights. One example is how the Supreme Court treats the subject of eminent domain or the condemnation of private property for a public use.

For many years, the court recognized the right of public agencies to take private property for the public good, even when the private developers have a big case and a stake in the process. Well, the justices have agreed that the private landowners are entitled to full and just compensation when their land is taken. The Court is not always agreed on when such a taking is justified as a public use. Our court has held that normally, it will defer to the state's determination of what constitutes a public use, or will let that, allow the state to take private land. I've always believed, however, that we should avoid adherence to inflexible hard and fast rules when the facts of the case do not support the application of those rules.

As many hearing me today are aware, I've disagreed with the Court's majority in some takings clause cases, such as in the case where the city took an entire neighborhood of private homes, including Matt and Wilhelmina Dery, who had, she was a widow who'd been born in her house in 1918. She'd lived there ever since. And the condemnation by the community was for the purpose of promoting a privately owned business park. While the majority of my colleagues found that it was appropriate to simply defer to the local government decision in determining why the project advanced a public purpose, I disagreed and thought such difference to be very inappropriate in that case.

Now our Constitution is clear when it says, "Nor shall private property be taken for public use, without just compensation." As I wrote, in the case of Kelo v. City of New London, these provisions ensure stable property ownership by providing safeguards against excessive, unpredictable or unfair use of the government's eminent domain power, particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the will of the majority. As I wrote, we must be careful not to give unchecked deference to the government's decision to take property for the benefit of another private person. In the United States, legislators are always free to provide greater protection for property rights. Recently, many state legislators have adopted strong limitations on the power of state government developers to condemn property in the name of economic progress. I've been encouraged by the limitations being placed by a number of states on the power of the state and local government to take property from private owners merely for economic development.

Now for over 200 years, America has preserved the liberties of our citizens. I'm proud to have served on the Supreme Court for 25 of those years. And I trust that the Court has been a faithful guardian of the trust placed by the founders of our republic and our citizens. Our court is not always been right. But we've always tried to be right. Our Supreme Court uses the facts of each case to further explore and explain the law and its fundamental principles. I trust that in every future case, it will allow the Court to continue this process. It has served our nation well.

Now today at this first International Conference on Property Rights held in Beijing, thank you for giving me the Brigham Kanner Prize. I hope the people of both the United States and China are going to benefit by learning and understanding from the work sessions, more of our respective property rights laws, and that we will continue to develop ways in both our countries for preserving rights and property for the benefit of all our citizens. And most of all, I hope that the mutual understanding started today at this conference will continue to thrive for many years to come. Thank you very much, and good luck with your discussions.