ARTICLE

A Little Erosion of Liberty

Taking a Stand against Even Minor Assaults Is Critically Important

JANUARY 01, 1996 by LAWRENCE W. REED

Landlords and tenants are not usually on the same side in the courtroom. But in Kalamazoo, Michigan, a group of tenants are standing up for their property rights and supporting their landlord against the City’s inspection policy. It’s a case with far-reaching implications that should concern every American.

When conducting building code inspections, the City of Kalamazoo demands that landlords provide access to rented apartments, even without tenant consent or a valid search warrant, thereby cutting tenants entirely out of the process. As a result, government inspectors are free to roam through bedrooms and bathrooms while apartment tenants are at work or out shopping.

The intrusive nature of Kalamazoo’s inspection policy first came to light in 1994, thanks to the principled stand of Mr. Jerry Speedy. Speedy, the manager of Kalamazoo apartment complexes owned by the firm Edward Rose and Sons, Inc., was criminally charged with violating the City Housing Code when he refused to let inspectors into rented apartments without tenant consent. Fortunately, a judge last October dismissed the charges against Speedy but left the constitutional matter of the inspection program itself up for grabs.

Most Americans have been brought up to believe that their home is their castle, the one place where government must unquestionably respect their privacy. Indeed, the Fourth Amendment to the U.S. Constitution firmly establishes the sanctity of private property rights by guaranteeing that the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”

It ought to be abundantly clear that in America, with rare exception, government officials cannot constitutionally enter a home without either the resident’s explicit approval or a valid search warrant issued by a judge who has good reason to issue it. Perhaps the inspectors of Kalamazoo believe that renters don’t have the same rights as homeowners or that end-running the Constitution is all right if it’s for a tenant’s own good. That brings to mind a remark attributed to philosopher Henry David Thoreau more than a century ago: “If I knew for certain that a man was coming to my home to do me good, I would run for my life.”

To protect their rights, 13 tenants supported by the prestigious Institute for Justice in Washington, D.C., have filed a federal lawsuit challenging the constitutionality of the City’s inspection program. Requiring that the City receive the consent of tenants or a valid warrant, it should be noted, does not nullify the Housing Code (even if good reasons exist to do so). Tenants can still let inspectors into their apartments if they wish, or contact the inspectors directly if they believe a Housing Code violation exists.

Kalamazoo officials claim that the building code inspections constitute only minor invasions of privacy and therefore they should not be subject to the same judicial scrutiny as police searches in criminal investigations. Scott Bullock of the Institute for Justice responds: “The invasion of privacy and the undermining of private property rights are no less severe when government officials enter a home to check the electrical outlets in one’s bedroom or the pipes in the bathroom. Regardless of the nature of a government search, the Fourth Amendment protects an individual’s home from unwanted government intrusion.”

How Liberties Are Lost

The liberties of a free people, it should be noted, are seldom lost in one fell swoop. They’re more often lost via “salami” tactics—one slice at a time. Thus, taking a stand against even a minor assault is critically important. Accepting without objection the little erosions of liberty can foster an avalanche later.

Bullock makes this very point when he notes that “Strengthening property rights against the encroachments of local government is a growing necessity. In New Jersey and California, private shopping mall owners must allow social activists onto their property to distribute leaflets and demonstrate. Until the U.S. Supreme Court stepped in (Dolan v. City of Tigard, 1994), a city in Oregon demanded that a business owner convert 10 percent of her land into a public bicycle path if she wanted a permit to expand her business. And in Minnesota, wetlands laws are being expanded to open privately-owned property to the public.” The tenants in Kalamazoo, meanwhile, are seeing their property rights threatened merely because of their status as apartment dwellers.

If the tenants’ case goes all the way to the U.S. Supreme Court, there’s reason to hope for an affirmation of the Fourth Amendment. In recent years, the Court has declared that “individual freedom finds tangible expression in property rights” (1993), that “property rights cannot be relegated to the status of a poor relation” in comparison to other constitutional rights (1994), and that “the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic” (1980). In 1961, the Court even ruled that a landlord cannot approve a search of a tenant’s home without the tenant’s consent or a warrant!

It may rankle a few bureaucrats, but nothing in the Constitution suggests that Kalamazoo or Peoria or El Paso or any other city is exempt from its provisions.