Defenders of Property Rights
When people think of civil rights, they generally tend to conjure up images of segregated schools or restaurants and the fight we had (indeed, are still having) in this country to ensure that all people — regardless of their skin color or nationality — can enjoy the same privileges of living under the rule of law in a free society. That right — the right to equality regardless of race, color, or creed — is guaranteed by the 14th Amendment to the United States Constitution. Today, however, another civil rights revolution is underway. At issue is another right, this one guaranteed by the 5th Amendment to the U.S. Constitution — the right to obtain payment of just compensation whenever one’s private property has been taken by the government for public use.
Just as segregation led to the racially-based civil rights movement in the 1960′s, so it is that incursions on property rights, largely in the name of protecting the environment, has sparked the property rights movement now some 30 years later. Starting in the 1960′s, federal, state, and local governments increasingly began to regulate property rights through environmental protection policies. Today, environmental regulations touch every conceivable aspect of property use and ownership often infringing directly upon private property rights protected by the Constitution. Through its ability to regulate, the government has steadily and increasingly tended to “take” whatever uses and benefits of property it wishes rather than condemning the property outright and paying for what it has taken.
The property rights movement today is comprised of thousands upon thousands of individuals across America who are being singled out by the government to bear the unfair burden of implementing land use and environmental policies the government itself is simply not prepared to pay for. The complaint of the property owner is not so much what the government is trying to achieve through its policies, but the means whereby it is achieving them.
A case in point is the decision last June by the United States Supreme Court in Dolan v. City of Tigard. At issue in Dolan was whether the city could demand from Florence Dolan approximately 10% of her land — which the city planned to use for a bicycle/pedestrian pathway and for a public greenway — in exchange for being granted permission to enlarge her plumbing supply store. No one, including the Dolans, objected to the city’s plans for a bike path or a greenway, but the fair thing — the constitutionally-mandated way of achieving the city’s objectives — was for the city to buy the land necessary to complete the project rather than holding Mrs. Dolan’s planned use of her property hostage as did the city of Tigard.
It is this infringement of rights in private property — not necessarily an objection to the objectives of the governmental purpose — that has provoked people to unite to form the property rights movement.
These people are objecting to an environmental regulatory regime that costs Americans $300 billion a year in compliance costs, and which ranks even the most insignificant snail’s interest as more important than human interest. Or to a wetlands program which delineates one to two hundred million acres of land — 75% of which is privately owned — as “wet” and must be maintained untouched by human hands. They are objecting to a criminal enforcement program which puts innocent people in jail for simply placing dry sand on existing dry sand, all on land which is privately-owned — because it violates the government’s policy of no net-loss of wetlands.
Until recently, the Supreme Court showed little interest in property rights law. Back in 1922, Justice Oliver Wendell Holmes declared the bedrock principle of takings law: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” After this ruling, however, the Court did not select any cases that would advance this doctrine. This was apparent in 1978, When Justice William Brennan expressed his dismay over the Court’s inability to “develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government rather than remain disproportionately concentrated on a few persons.”
In 1987, however, the Court began a renewed interest in property rights, ruling on three cases. In First English Evangelical Church v. County of Los Angeles, the Court held the county could be required to compensate a church barred by a flood control ordinance from reconstructing summer camp buildings destroyed during a 1978 flood. In Nollan v. California Coastal Commission, the Justices ruled the public could not require the owner of a home next to a beach to donate a third of his land to the state in order to obtain a permit to rebuild the house without paying just compensation. Hodel v. Irving invalidated a regulation eliminating the right of Indians to devise to their heirs reservation lands.
In 1992, the Supreme Court again ruled for the plaintiff in Lucas v. South Carolina Coastal Council. The case involved two beachfront lots Mr. Lucas planned to develop that were rendered useless by a beachfront protection statute. The central holding of Lucas is that “[r]egulations that deny the property owner of all ‘economically viable use of his land’ constitute one of the discrete categories of regulatory deprivations that require compensation without the usual case-specific inquiry into the public interest advanced in support of the restraint.” In the aftermath of the case, the state was forced to purchase the property from Mr. Lucas. The state then put the property up for sale to potential developers — the exact purpose from which Mr. Lucas was barred. This shows how the attitude of the government changes when it is forced to bear the cost of its regulations — at least when the Fifth Amendment is applied.
Dolan was decided during this past term of the Court. In his opinion, ChiefJustice William Rehnquist noted: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment, should be relegated to the status of a poor relation in these comparable circumstances.” The High Court reversed the decision of the lower court, sending it back to be retried — this time putting the burden on the city to prove why it needs to take the Dolan’s property.
The courts, however, are not the only place where the muscle of the property rights movement is being felt. The 103rd Congress has been active on three fronts — unfunded mandates, risk assessment analysis of regulations, and property rights bills
– which environmentalists collectively refer to as the “unholy trinity.” These three reforms have become dreaded amendments to regulatory reauthorizations in the eyes of the environmentalist movement.
In a memo to environmental leaders, a Natural Resources Defense Council lobbyist warned that regulations long overdue for reauthorization could not be passed during this session of Congress without one or more of the trinity amendments being attached. The strategy offered by the lobbyist was to keep most of the reauthorization bills off the table, allowing the environmental movement to focus on just one or two pieces of legislation. Regulations that were not reauthorized are in no danger of expiring because they remain valid until reauthorized.
Property rights was the focus early in the session, when Interior Secretary Bruce Babbit’s National Biological Survey — a plan to map the entire nation by ecosystems — was saddled with property rights amendments when it passed the House. The bill was never introduced in the Senate.
The importance of risk assessment analyses led to the downfall of the bill that would have elevated the EPA to cabinet-level status. When the bill arrived on the House floor for debate, the leadership would not allow consideration of a risk assessment amendment that had already passed by an overwhelming margin in the Senate. Angered over this move, congressmen voted down the rule on the bill, sending it back to committee — effectively stopping the bill.
Lawmakers with political ideologies as divergent as Senators Dirk Kempthorne and Carol Mosely-Braun have come to agreement on the issue of curbing unfunded mandates, with each sponsoring bills to reduce or even eliminate them completely. Unfunded mandates are federal legislation that seeks to achieve its goal by compelling states and localities to pick up the bill for their enforcement. These mandates are the bane of mayors and governors across America, and even the Clinton Administration has been forced to take notice of the problem. Environmentalists are particularly concerned about this since so many environmental regulations passed at the federal level compel the states to pay for their compliance and fiscal outlay — as well as forces them to set up their own programs in some cases.
The property rights issue has gained such prominence that the Senate has established a property rights caucus led by Senators Dole and Howell Heflin, a former chief justice of the Alabama Supreme Court. In the House, Democrat Billy Tauzin is finding himself at odds with his party colleagues in the House leadership as he circulates a discharge petition to bring his “Property Owner’s Bill of Rights” to the floor for debate. Senator Phil Gramm, an oft-mentioned Republican candidate for the White House in 1996, has also introduced property rights legislation, and expressed interest in using it as a campaign issue in this fall’s elections (Gramm is the head of the National Republican Senatorial Campaign Committee).
Outside the Beltway, property rights is becoming a major issue in the states. Over the past legislative session, 37 state legislatures introduced almost 100 bills to protect property rights. Ten of these states have turned these bills into law. At the American Legislative Exchange Council’s 1994 conference, a whole morning was set aside to discuss the issue of property rights. Many states are eagerly awaiting the results of a vote to take place in Arizona in November, where voters will be asked to decide the fate of property rights legislation.
After a petition campaign rife with deceitful allegations that property rights legislation would ruin Arizona’s economy and ecology, environmentalists were able to force a referendum on property rights legislation already passed by the legislature and signed by the governor. Proposition 300, as it is now known, “would require state agencies, before a taking results, to examine their activities, including rules and other regulatory actions that effect the use of property, to determine if an action requires compensation from the state.” In addition to this important election battle out West, Massachusetts and Fl….orida are also putting property rights to a vote in referendums this fall.
From the very beginning of our republic, property rights have been considered sacred. The Founding Fathers envisioned a strong system of property rights as a means of protecting individual liberty. John Adams, in his Defense of the Constitutions of Government, said: “The moment the idea is admitted into society that property is not as sacred as the laws of God, and there is not force of law and public justice to protect it, anarchy and tyranny commence.” The Founding Fathers believed property rights to be of such overreaching importance that it is the only part of the Constitution providing money to be awarded to citizens for incurred damages: “[N]or shall private property be taken for public use, without just compensation.”
Property rights is truly the civil rights issue of the 1990′s and beyond. When the right to own and control property are infringed, the rights of free speech, association, and many others are put at risk. Who would dare speak out against a government that can take their land at any moment, with no restraint. Realizing this, the people have banded together, organized, and are actively fighting for their rights….