Posted on 03/17/2004 3:32:33 AM PST by I Am Not A Mod
"2. Breathe New Life Into the Takings Clause"
"The Fifth Amendment's Takings Clause reads: "nor shall private property be taken for public use without just compensation." As presently interpreted by the Court, that clause enables owners to receive compensation when their entire estate is taken by a government agency and title transfers to the government; when their property is physically invaded by government order, either permanently or temporarily;(2) when regulation for other than health or safety reasons takes all or nearly all of the value of the property;(3) and when government attaches unreasonable or disproportionate permit conditions on use.(4)"
"Although that list of protections might seem extensive, a moment's reflection should indicate the problem--and it is a very large one. Most regulations do not reduce the value of a person's property to zero or near zero. Rather, they reduce the value by 25 percent, 50 percent, or some other fraction of the whole. In those circumstances--the vast majority of circumstances--the owner gets nothing. Only if he is "lucky" enough to be completely wiped out by a regulation does he get compensation. Surely that is not what the Framers meant to happen when they wrote the Takings Clause.
"Plainly, the Court has gone about its business backwards. Rather than ask whether there has been a taking and then ask what the value of that taking is, the Court asks what the value of the loss is to determine whether there has been a taking. And it has done that because it has never set forth a well-thought-out theory of takings, one that starts from the beginning and works its way systematically to the end. It is just such a clear statement of the matter that Congress needs to provide."
"A. Provide a clear definition of "property." In providing such a statement, the first and most important order of business is to give a clear definition of "property." In every area of the law except the law of public takings, as every first-year law student learns, "property" refers not simply to the underlying estate but to all the uses that can be made of that estate. James Madison put the point well in his essay on property: "as a man is said to have a right to his property, he may be equally said to have a property in his rights."(5) Take one of those rights--one of those sticks in the "bundle of sticks" we call "property"--and you take something that belongs to the owner. Under the Fifth Amendment, compensation is due to that owner."
"When "property" means simply the underlying estate, however, then government can take all the uses that go with the property-- leaving the owner with the empty shell of ownership--and get out from under the compensation requirement. That definition is what many opponents of greater protection for property owners have argued for. But it is also, by implication, the definition the Court starts from, making an exception only when the loss of use (and value) becomes near total. When a thief takes 75 percent of his victim's property, no one has difficulty calling that a taking. When government does the same thing, however, the Court has been unable to call it a taking."
"Congress must make it clear, therefore, that "property" includes all the uses that can be made of a holding--the very uses that give property its value, the taking of which diminishes that value. When those uses are taken through regulatory restrictions, the owner loses rights that otherwise belong to him."
(Excerpt) Read more at cato.org ...
In every area of the law except the law of public takings, as every first-year law student learns, "property" refers not simply to the underlying estate but to all the uses that can be made of that estate. James Madison put the point well in his essay on property: "as a man is said to have a right to his property, he may be equally said to have a property in his rights."(5) Take one of those rights--one of those sticks in the "bundle of sticks" we call "property"--and you take something that belongs to the owner.
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