A More Critical Look At Jones v. Flowers

Something hasn’t sat quite right with me since I wrote about the Jones v. Flowers decision two weeks ago. While I stand by my initial analysis of the decision (and the Liberty Blog was among the first to break it down), inasmuch as the Court did the right thing by limiting the state’s power and ensuring that the due process rights of property owners are properly protected, I've come to some more critical conclusions regarding Chief Justice Robert's opinion.

To sum up – after not paying taxes on the property of his estranged wife, the State of Arkansas sent Mr. Jones a registered letter informing him of his intention to take the property. Mr. Jones, not being an occupant of that property, didn’t get the letter. The state then put a notice in the paper, which Mr. Jones didn’t see. Eventually, Mr. Jones found out about the taking, and challenged. The High Court said that when the state learned that Mr. Jones hadn’t gotten the registered letter, they knew that he hadn’t been “actually” informed of the potential taking, and thus shouldn’t have proceeded.

That’s a good thing. But it’s what the Court also did that hasn’t sat right with me. The Court reaffirmed their earlier decisions, which stated, “Due process does not require that a property owner receive actual notice before the government may take his private property,” citing a case called Dusenbery.

That stark phrase simply takes my breath away. Kind of defeats the entire purpose of due process, doesn’t it? The whole concept of due process, in my opinion, rests on the idea that one is treated fairly and justly by the hands of government (which is, after all, why we have a Constitution – to lay out the rules whereby government is supposed to operate, delimiting powers specifically to protect things like the rights to due process).

But the Chief Justice doesn’t stop there. That was merely the first sentence of the first paragraph of the second section of the opinion, that which presents the underlying basis for the legal reasoning behind the decision. And while he does roundly, and rightly, chastise the state for their actions once it became clear that Mr. Jones hadn’t received his letter, he then takes what I consider a dastardly step.

He actually let’s the state know how they could get around this!! In order to satisfy due process, Chief Justice Roberts suggests, “One reasonable step… would be for the State to resend the notice by regular mail, so that a signature is not required.”

This is a wonderful precedent that the Chief Justice lays out – with one hand, he has roundly slapped the state for engaging in egregious conduct (I consider the violation of fundamental civil liberties by the state to be egregious). But with the other hand, he’s offered them an out, a legal “get out of jail free” card.

Much like they were no help in chastising the state, the dissent offers no help here, essentially holding the state blameless. One would hope that the same justices who stood so rightly in protecting Susette Kelo might have been a bit more helpful in this instance. Unfortunately, no.
So, as I rethink this, as good as the Jones decision could be, ultimately, I’m really not too happy about it. Mr. Chief Justice, the state really doesn’t need your help. Your guidance, yes. A firm hand when they do something wrong? Certainly. But they don’t need you to tell them how to skirt around the rights of the citizenry.

They’re doing that job just fine by themselves, thank you very much.

- Andrew Langer