A Two-Front Battle for Property Rights

Article excerpt

CONGRESS next term will face increased pressure from property-rights advocates for legislation upholding the constitutional requirement that laws and government regulations not "take" private property without paying for it. Proponents of private-property rights have been invigorated by two significant events this summer.

The first and most significant victory for private-property rights was the Supreme Court's decision in Lucas v. South Carolina Coastal Council, handed down last June. In that case an owner of beachfront property in South Carolina demanded compensation from the state when coastal-protection regulations prevented him from building a planned house. The Supreme Court rejected the state's contention that to achieve laudable objectives, government can regulate - as long as it doesn't actually seize - private property without paying just compensation.

As the noted "takings" scholar Richard Epstein has observed, many environmentalists have adopted the "orange rind theory" of property rights. They want to take all of the juice, pulp, and seeds from the orange and leave owners with the worthless rind - that is, merely bare title to their property. Over the past decades environmentalists have accomplished their objectives by the enactment of complex and intrusive regulatory schemes that often leave property owners in that situation. Courts have continued this process by acquiescing in or even extending the reach of such laws and regulations.

The ordinary property owner is not in favor of fouled air and polluted water and is willing to contribute to the achievement of important environmental goals. Most owners are not content, however, to be left holding an empty bag after all the value of their property has been removed by overreaching environmentalists. Some environmentalists seem to have forgotten that the Constitution expressly guarantees private ownership of property irrespective of the goals that the government may be seeking to achieve.

That the Supreme Court has not forgotten was underscored in the Lucas decision. Now government regulations that leave the property owner holding a "white elephant" will be subject to a presumption of unconstitutionality. To overcome that presumption the government must prove that restrictions on property use are justified on the basis of background principles of common-law nuisance and traditional land use.

Also important is the tenor of Justice Antonin Scalia's majority opinion. There is a sense that the court relied on the roots of traditional Anglo-American property law and values. …