LIFE, LIBERTY AND THE PURSUIT OF PROPERTY

In the recently ended 1994 term of the U.S. Supreme Court, a notable case stands out as a most welcome development. We view with pleasure the court's vindication of property rights in the case of Dolan vs. City of Tigard.

In this case, a 5-4 majority -- we wish the prevailing margin had been fatter -- set new limits on the ability of government to require developers to set aside part of their land for environmental or other public uses. We have long viewed this as a taking of property for which government must pay compensation, and we wondered how it could be viewed otherwise.

The historical fact is that, since the 1930s, courts increasingly have looked the other way as governments infringed on property rights. This they have done on the theory that property rights somehow aren't on a par with our cherished rights of freedom of religion, speech, assembly and to petition our government.

We believe this view to be not merely wrong, but also thoroughly refuted by history. The history of freedom is the history of the individual's struggle to possess some measure of autonomy from unbridled state power. In struggling to gain that autonomy, the crucial nature of the acquisition, possession, enjoyment and distribution of private property simply cannot be overstated. The founders of our country understood this. Recall that Thomas Jefferson's first draft of the Declaration of Independence declared as unalienable "life, liberty and the pursuit of property" before settling on "the pursuit of happiness."

With this case, and last year's ruling in Lucas vs. South Carolina, a majority has twice voted to restore property rights to the rightful place of importance the founders intended. In the Dolan case, the Supreme Court ruled that governments have the burden of demonstrating a "rough proportionality" between the required set-aside of property and whatever harm may be caused by the development, such as flooding or increased traffic. Writing for the majority, Chief Justice Rehnquist said the Fifth Amendment's takings clause should no longer be "relegated to the status of a poor relation" within the Bill of Rights.

In another high court matter, the pending nomination of appeals court judge Stephen Breyer bears mentioning as well. Washington insiders, prompted by leaks from White House sources, reported during President Clinton's deliberation process that the President preferred as a nominee an activist politician. Names prominently mentioned included Senate Majority Leader George Mitchell, who was apparently offered the job, and New York Gov. Mario Cuomo.

Barring a special instance of commanding judicial scholarship, the Supreme Court is no place for retired politicians. We like the Breyer appointment. This is all the more so given the too-often radical predilections of Mr. Clinton's appointees.

When he worked on the staff of the Senate Judiciary Committee in the 1970s, Judge Breyer led the effort to reexamine the underlying premises of the gargantuan federal regulatory apparatus. He was sufficiently courageous to question their most important justification: the premise that such regulations always benefit the consumer. In such areas as airlines and trucking, Judge Breyer pioneered in making the case for deregulation.

What this indicates is a fine and highly original mind, one that looks beyond cliches and bores in on the real meaning and impact of government policy. There is also reason to believe, based on his witings, that Judge Breyer will have some considerable sympathy for property rights in the cases that come before the court dealing with this crucial, and too often under-appreciated, bulwark of American liberty.

We are glad that President Clinton eschewed the political route and instead chose an eminent jurist in Judge Breyer. He is certain to add to the quality of jurisprudence there, replacing as he will the baldly results-oriented and thoroughly undistinguished Harry Blackmun, easily Richard Nixon's worst appointment.