Land Rights – Why Do They Matter?

Issue #4

Fall 1995


“Nor shall private property be taken for public use without just compensation”

Fifth Amendment, U.S. Constitution

Today, all across America, people are focusing on a major constitutional issue: their right to control the use of their land and property. Landowners in the East are concerned about restrictions on their land rights when their property is designated as historic. Farmers are up in arms about the Corps of Engineers wetlands program that forces them to abandon the use of farmland because it may become wet during part of the year. Ranchers and forest owners in the West are threatened by enforcement of the Endangered Species Act.

In some ways, the movement is a rebellion. Yet in the strict meaning of the word, the movement is more a revolution – a complete rotation that carries us back to a first Constitutional principle, the principle of protection against excessive government.

Some of the groups that contest the state’s authority describe the problem in simple terms. The land on which they live is theirs, quite often owned by family members for three generations or more. In their view, no one has a superior right to tell them what they can do or not do on their land. (Of course, if the owners are truly harming others, then they can be sued under common law.)

Others see the problem in more complex terms. They hold contracts, deeds and easements that give them the legal right to graze cattle, cut trees, or build houses. They see a growing maze of federal, state and local regulations that interfere with the terms of the contracts and deeds they hold. These regulations are supposed to serve a public interest, but the burden falls on the shoulders of individuals who hold specified rights to land. In their view, their Fifth Amendment rights are denied. They believe what the Constitution says: “Nor shall private property be taken for public use without just compensation.”

Corporations and trade associations see yet another dimension. These groups, in some cases, are torn between raising their voices at what they view as violations of private property rights and accepting them as inevitable. They fear the public relations backlash that follows if they are tarred as being anti-environmental.

This property rights movement is sometimes depicted as a “stop the environmentalists” effort, and a number of environmentalists oppose and criticize it. But environmentalists, too, are interested in property rights. Instead of seeking to protect existing rights, however, they seek to redefine rights through government control of the land. Sometimes the issue relates to how public lands will be used – logging versus the natural sanctuary. In others, the question has to do with private land rights – whether or not an individual can build a home on private beach property. No matter how land-use controversies are depicted, property rights, the legal ability to exclude others and control use, is the fundamental issue.

The question is how rights are to be transfered. If the government decides to change the rights, will the existing private rights be purchased, as property rights advocates argue they should be, or will they simply be taken, as many environmental activists want?

My interest in the 20th century property rights movement began

with an earlier project that involved a study of how property rights for ordinary people evolved over the centuries. My reading carried me back to 10th century England and the rise of common law. I was struck by stories about common law rules of property and how they had evolved from communities of people in rural areas, not from constitutions or the seats of government. Accounts of how country people, probably kinsmen, took annual oaths to be jointly and severally liable for maintaining community peace were joined by stories of country courts and judges who rendered decisions involving trespass, theft and violent crimes.

My studies led me to the great 17th-century English jurist Sir Edward Coke. His explanation of the Magna Carta left little doubt in my mind that the Great Charter, as he termed it, was a watershed event in the struggle of ordinary people to protect their natural rights against encroachments by government. There in the Magna Carta one finds words that sound very much like the takings clause of the Fifth Amendment: “No freeman shall be deprived of his free tenement or liberties or fee custom but by lawful judgment of his peers and by the law of the land.”

At the time of the Magna Carta, “the law of the land” referred to common law, not to laws written by a legislative body or king. Customary law, developed informally and rooted in community norms, was seen as the only logical way to protect property rights that had evolved over the centuries. Rights to land emerged from community and were transmitted to the nation/state. The lesson seems clear: People do not have rights because the state allows them. The nation/state exists because people have rights.

From the Magna Carta to today, people have struggled with an endless paradox: A government strong enough to protect property rights is also powerful enough to take property. Constitutions that evolve from free people provide the means to wall off government. This wall separates two economic domains – one public, the other private. Of course, the lines often blur, but one force dominates on each side.

One side of the wall is governed by the law of politics. There, the body politic engages in collective choice, where voting rules and special interest struggles determine outcomes. The other side is governed by a rule of law, where owners of property rights are forced to bear the cost of their actions while gaining the fruits of their labor. On one side of the wall, land use can be specified by statute. On the other side, transfer of land rights requires purchase.

Things are never perfect on either side. Through property rights, owners have the incentive to look ahead, to conserve, to avoid short term actions that foreclose better long-term outcomes, and to face the opportunity cost of their actions. On the other side of the wall, the rule of politics allows individuals to promote the public weal, but also enables the players to engage in opportunistic behavior by calling on government power to force costs on others.

The Fifth Amendment of the U.S. Constitution is America’s chief property rights wall. But like other walls, it must be maintained. At times cracks appear in the wall; new mortar must be applied and stones replaced. Otherwise the wall will fall.

In many ways, today’s property rights advocxates are calling for a modern Magna Carta. Once again, ordinary people are seeking to restrain and contain government. But instead of having to settle differences with picks, swords and arrows, the parties in the struggle now turn to courts and legislative bodies. Their struggles help us to see how strong is the motivation for freedom.

Copies of Land Rights: The 1990′s Property Rights Rebellion can be obtained by calling Rowman & Littlefield at 800-462-6420

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