Standing Ground

I will never forget meeting with the Archie family in Canton, Mississippi, during our eminent domain case there in 2002. This was a family of very modest means and the state was trying to take its land through eminent domain to give to Nissan to build an auto plant. Once we got involved, Mississippi offered the Archies a lot more money for their property. I told the family that I thought we could win at the Mississippi Supreme Court and recommended that we keep going, but it was a huge financial risk to hope for a victory while walking away from a significant amount of cash. The Archies stood firm. They turned the state down; the Supreme Court stopped the condemnations dead in their tracks; and the state and Nissan decided to drop the eminent domain actions. The Archies are on that land and in their homes to this day.

This September, IJ celebrates its 25th anniversary. A hallmark of our work for more than two decades is that we pull out all the stops to win for our clients and the Constitution. It takes unyielding determination to reach those results, and that is true whether the case lasts for six hours (like our recent victory in the Muskogee, Oklahoma, forfeiture case) or six years (like our victory in the National City, California, eminent domain case on behalf of a youth boxing gym). But like the Archie family, we refuse to give up.

Why are our cases so intense and difficult? One reason is that the government has so much power and, in litigation, it holds all the advantages.

“But at IJ, we and our clients do not settle. Unless the government repeals the law or lets people keep all of their property, we fight on.”

Under modern constitutional jurisprudence, there is a presumption of constitutionality rather than a presumption of liberty. Therefore, people like IJ’s clients must typically rebut every conceivable justification for a law. That is a steep uphill climb.

In addition to having this presumption turned on its side, the government also throws up a slew of procedural roadblocks that are designed to keep a judge from reviewing substantive constitutional claims. We do not typically detail our fights on these issues (partly because we do not want to bore readers of Liberty & Law), but in so many of our cases, IJ lawyers must cut through legal thickets before even getting a chance to present the substance of our challenges.

Even if we get past these challenges, the government has many other tactics at its disposal. One of the most common is to try to settle the case by giving our clients something but stopping well short of a full victory. Maybe they will offer more money for a house being taken by eminent domain. Or offer to give back some of the cash taken from an illegal highway seizure. Or give our client—but no one else—a license to practice their occupation. Governments are used to playing like this because a vast majority of cases settle. Moreover, most people, especially low- or moderate-income folks, simply don’t have the money to fight.

But at IJ, we and our clients do not settle. Unless the government repeals the law or lets people keep all of their property, we fight on. We either achieve a complete win for our client or get a decision on the merits by a court. Ideally, we get both. And because we do not charge for our legal services, thanks to the generosity of our donors, our cases are often the only way the unconstitutional acts of government are challenged.

It is during the government’s attempts to essentially buy off our clients through settlement that their heroic nature comes shining through. There are so many instances of our clients turning down offers because they did not want to settle for half a victory and because they did not want the government abusing someone else’s rights in the future.

It is not easy playing chicken with people in power who have the unlimited pockets of the taxpayers at their disposal, but IJ and our clients have done it throughout our 25 years.

And how things have changed since our founding in 1991. In the early days, IJ was not very well known and did not yet have a track record of success. So government officials and their attorneys often did not take us very seriously. They thought they could keep fighting and prevail. That is no longer the case. When we get involved, governments now know that they are going to face the full force of IJ in court and in the court of public opinion. They also know that our activism team is going to rally the community against what the government is doing and that we will employ strategic research to expose the phony justifications provided by the government for its actions.

Today, we often see governments backing down when IJ comes to town. Governments learn that citizens cannot be bullied, and we are glad that our lawsuits cause politicians and bureaucrats to rethink their suppression of liberty. But we are always refining our tactics to ensure we get court rulings that government officials violated the Constitution. Sometimes that means we ask for nominal damages so a court still rules on the constitutionality of a law even if that law has been repealed during the course of the litigation. IJ has also filed class-action lawsuits (like our forfeiture challenge in Philadelphia) that will keep the case and issues alive even if the government eventually gives back the property that it tried to illegally forfeit.

In short, we are always searching for ways to maximize the chances of victory in order to advance individual liberty. As this political season unfolds during our 25th year, IJ is perfectly positioned to take on governments at the federal, state and local levels. As you know, our work is desperately needed. It will continue and grow stronger in the years and decades ahead.