Property Rights and Regulatory
• enact legislation that specifies the constitutional rights of property owners under the Fifth Amendment's Just Compensation Clause; • follow the traditional common law in defining “private property,” “public use,” and “just compensation”; • treat property taken through regulation the same as property taken through physical seizure; and • provide a single forum in which property owners may seek injunctive relief and just compensation promptly.
America's Founders understood clearly that private property is the foundation not only of prosperity but of freedom itself. Thus, through the common law and the Constitution, they protected property rights—the rights of people to freely acquire and use property. With the growth of the modern regulatory state, however, governments at all levels today are eliminating those rights through so-called regulatory takings—regulatory restraints that take property rights, reducing the value of the property, but leave title with the owner. And courts are doing little to protect such owners because the Supreme Court has yet to develop a principled, much less comprehensive, theory of property rights. That failure has led to the birth of the property rights movement in state after state. It is time now for Congress to step in—to correct its own violations and to give guidance to the courts as they adjudicate complaints about state violations.
When government condemns property outright, taking title from the owner, courts require it to compensate the owner for his losses under the Fifth Amendment's Takings or Just Compensation Clause: “nor shall private property be taken for public use without just compensation.” The