A man’s house is his castle. His security against all the world. A bedrock proposition of the common law. And yet, the City of Seattle seeks to deprive property owners of that security by forcing them to house criminals—even violent criminals—in their houses.

Seattle’s Fair Chance Housing Ordinance blazes this trail through the rights of the Emerald City’s property owners. Designed to reduce the adverse impact of criminal convictions, the Ordinance makes it unlawful for a private property owner to take any adverse action based on a prospective tenant’s criminal history. Don’t want a murderer living in the same building as your children? Too bad, says the city. Don’t want to rent to a repeat burglar? Unlawful to deny him a room, according to Seattle.

A group of property owners challenged this Ordinance as violating their fundamental right to exclude people from their property. Chong and Marilyn Yim live in one unit of a triplex and rent their other two units. The units share a yard, porch, mailboxes, and a utility room. The Yims want to consider the criminal backgrounds of potential tenants to ensure the safety of their children and other tenants. But Seattle’s ordinance deprives them of this ability.

Faced with the Yims’s lawsuit, the District Court and Ninth Circuit sided with the city. The Ninth Circuit held the Yims’s asserted right to exclude people from their property to protect themselves and others was like an individual claiming a “right to use property as one wishes”—non-fundamental, and unprotected, so long as the court could conceive of a justification for the law (which it did). The Ninth Circuit, empowered to imagine a justification for the law with minimal scrutiny, had no trouble assuming the law reduced barriers to housing faced by persons with criminal records and lessened the use of criminal history as a proxy to discriminate based on race. And such was enough to override the property owners’ mere desire to protect their tenants, families, and homes from potentially dangerous criminals.

But the Ninth Circuit did not assess whether a property owner’s right to exclude persons from their property is deeply rooted in history and tradition and therefore fundamental. Had the court performed this analysis, it might have concluded the right to exclude is indeed central to the nation’s legal history and tradition, and therefore fundamental. It is not merely a whimsical right to use property as one wishes—the right to exclude is the essence of property ownership itself. William Blackstone, a leading light on the common law at the time of the Founding, defined property at common law as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

At common law, there is even a specific history of property owners—innkeepers, who as common carriers generally opened their properties to all travelers—retaining the right to refuse entry to anyone “for good reason.” For example, in the New York case of Goodenow v. Travis, the court upheld an owner’s right to exclude a “person of bad reputation.” And this right of property owners to exclude persons of “notorious character,” particularly where it “appear[s] to be necessary for the protection of his guests, or himself,” in the words of an 1800’s New Hampshire court, continued from the Founding through enactment of the Fourteenth Amendment and beyond. Consider the 1890 North Carolina Supreme Court in State v. Steele, which upheld the right of an innkeeper to refuse entry to “persons of bad or suspicious character.” These cases are illustrative of the deeply held right of property owners to exclude persons from their property for the owners’ and residents’ safety and security.

The Yims are now petitioning for certiorari. The petition is worth granting because if the right to exclude is not fundamental and can be abolished for any conceivable reason, the bundle of property rights itself is at the mercy of the legislature’s blade. Vesting such a power in the legislature is inconsistent with republican government and inconsistent with our nation’s history and tradition.

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