A Little Erosion of Liberty; L. W. Reed

Ideas and Consequences A Little Erosion of Liberty L andlords 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 inspec tions, the City of Kalamazoo demands that landlords provide access to rented apart ments, even without tenant consent or a valid search warrant, thereby cutting ten ants 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 shop ping. The intrusive nature of Kalamazoo's in spection 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, ajudge last October dismissed the charges against Speedy but left the constitutional matter of the inspection pro gram itself up for grabs. Lawrence W. Reed, economist and author, is President of The Mackinac Center for Public Policy, a free market research and educational organization headquartered in Midland, Michi gan. 19 by Lawrence W. Reed Most Americans have been brought up to believe that their home is their castle, the one place where government must unques tionably respect their privacy. Indeed, the Fourth Amendment to the U.S. Constitu tion firmlyestablishes 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 be lieve 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 Tho reau 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 sup ported by the prestigious Institute for Jus tice in Washington, D.C., have filed a fed erallawsuit challengingthe 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 20 THE FREEMAN • JANUARY 1996 inspectors into their apartments if they wish, or contact the inspectors directly if they believe a Housing Code violation ex ists.

Kalamazoo officials claim that the build ing 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 in vestigations. Scott Bullock of the Institute for Justice responds: "The invasion of pri vacy and the undermining of private prop erty rights are no less severe when govern ment 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" tac tics-one slice at a time. Thus, taking a stand against even a minor assault is criti cally important. Accepting without objec tion the little erosions ofliberty can foster an avalanche later.

Bullock makes this very point when he notes that "Strengthening property rights against the encroachments of local govern ment is a growing necessity. In New Jersey and California, private shopping mall own ers must allow social activists onto their property to distribute leaflets and demon strate. 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 rel egated 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 EI Paso or any other city is exempt from its provisions. D Light a fire for freedom! Launch a Freeman Society Discussion Club! j oin the growing ranks of Freeman readers who have become part of FEE's net work of Freeman Society Discussion Clubs. More than 100 clubs have been organized in the 27 states and 7 foreign countries. Club members receive a number of special benefits, including discounts on FEE publications and invitations to special FEE events.

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