SURE SEEMS LIKE IT ought to be, which — I guess — in this day and age means the government will tell you it’s not, it’s a privilege granted or witheld at the whim of the Federal bureaucracy. But at one time, the Founders thought it ought to be. In fact, the famous phrase, “Life, Liberty, and the Pursuit of Happiness” originally read, “Life, Liberty, and Property.” Not that you have the right to have property given to you, or to a specific piece of property, but that the right to own property is a fundamental condition of a free state.
Glenn Beck, on radio last Thursday in the 10:00 hour, was retailing the horror story of a property owner denied free exercise of proeprty rights by the EPA. The story popped up elsewhere in the news and on the Web during the day.
In my opinion, the immediate individual officer(s) of the EPA are liable for civil rights violation, of a right to and in private property, protected by the Ninth Amendment and by the absolute absence of any enabling clause in Article One. Further, the latter condition affirmatively prohibits Congress from legislating in the matter.
And, yes, a finding for a plaintiff in such a case would necessarily define the EPA as an unconsitutional agency. That is a feature, not a bug.