​Most of us, when asked to name our constitutional rights, think immediately about things such as the rights of free speech or religious exercise from the First Amendment. These get the most attention, for good reasons. The framers of the Bill of Rights, however, wanted to ensure that other critical rights are also protected.

Last week, the U.S. Supreme Court heard oral argument in a constitutional case involving one of these rights – protection from the government taking property from an owner for arbitrary reasons or without fair compensation. The case, Sheetz v. County of El Dorado, California, involves a homeowner who objects to a $24,000 traffic impact mitigation fee he was required to pay as a condition of receiving a permit to build a home on property he owned in the county. He argues that the fee is excessive and unrelated to the impact the home is likely to have on traffic. The implication is that the county can use these types of exactions to support any project it would like by passing on (or “extorting,” as the Wall Street Journal editorial board argues) costs for unrelated municipal projects to homebuilders.

Sheetz points to previous cases from the Supreme Court. These involve administrative permit requirements that established the principle that when government seeks to impose conditions on property use, the conditions must be basically proportionate to the impact that the permitted property use would have.

The lower court, however, ruled that these prior rulings only applied to administrative agencies, not to elected officials. The county fee in this case, by contrast, was imposed by elected officials, and thus the requirements of the Fifth Amendment did not apply.

The Supreme Court justices’ questions suggest most are not convinced by the distinction drawn by the lower court. But there are lots of questions about how the Supreme Court’s precedents will apply in this situation. It may be that the court will clarify the general rule but send the case back to the lower courts for application to the facts.

Some amicus briefs point to a possible impact of the case on a pressing public concern – access to affordable housing. This is a critical issue in California. A report from the Public Policy Institute of California explains that “more than a third” of Californians have said they have “considered leaving the state due to housing costs.” The report found: “More than half of the state’s renters – and four in ten mortgaged homeowners – spend 30% or more of their household income on housing.”

Obviously, significant impact fees can add to the cost of creating new housing and, if widely imposed, conceivably exacerbate the state’s housing crisis.

The California concern has echoes in Utah. Gov. Spencer Cox has prioritized affordable housing in his recent budget proposal. Utah has experienced a “sharp two-year increase in the cost of the median priced home [which] precludes a growing share of households from homeownership and threatens the housing opportunities of future generations.”

Utah has, however, tried to temper the effects of impact fees by enacting a statute that specifies how they are to be used – attempting to ensure the fees address actual impact rather than being used to improve existing services or other government priorities.

Although the Supreme Court is not responsible for solving policy issues such as the availability of affordable housing, the Constitution’s protection of property rights may turn out to impact that issue. Perhaps this case will provide an economic example of a basic American constitutional principle: Protecting the rights of an individual or small group of people benefits society generally.

Logan Baird contributed to the research for this post.