Posted on 03/13/2004 2:30:17 PM PST by Robert_Paulson2
"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 ...
Wasn't this part of the "republican revolution's" plan for america? or did that all die with the ouster of Newt "sling blade" Gingrich?
What happened to the smaller government policies we were supposed to be pursuing?
and if the fifth amendment's taking's clause is restored in a measure, doesn't that also apply to ridiculous STATE laws and environMENTAL regulations as well?
...and if the fifth amendment's taking's clause is restored in a measure, doesn't that also apply to ridiculous STATE laws and environMENTAL regulations as well?
I don't want to take anything away from your questions and concerns here. But as I see it, the environmental lobby is a minor player on this issue. The biggest culprit in this regard are the promoters of land use regulations via zoning. Temporary increases in property values, as well as protecting property values, by stealing property values from others (neighbors), has stolen far more property value from citizens than all environmental lobby activities combined.
Such theft, rarely gets the play that environmental theft gets, because so many profit by the theft. Yet it is this vary precedent that sets the stage for all the other thefts that occur.
But why were there "county zoning meetings" to start with? This is the cause of the problem. This is the "fait accompli."
Environmentalists using pre existing tools should not be blamed. But rather the users and promoters of such tools to start with, are the culprits.
If we are to have reasonable, fair, equitable property rights, then I suggest that such rights are going to need to be defined, and set forth positively to the American people for examination and debate. Only then, will the cause, if it be right, come to the popularity necessary, for it to be established.
Expecting more from an administration, bypasses the people, and only results in an unfair criticism of such administration.
If we want Constitutional government, we are going to have to put it forth in a positive manner, without pointing to past, except to cite appropriate arguments of wisdom that apply today. Every generation, where applicable, needs to be convinced a new, of that which prior generations had to be convinced. That is, of the rightness of the cause at hand. The fact that the Constitution says such and such, is not good enough. America has never been a nation of doctrinaires.
I am truly sorry for the insult (though unintended), that I tossed at you. I should have known better.
Back in Munn v. State of Illinois, 94 U.S. 113 (1876), the Court stated:
"The power of the State over the property of the citizen under the constitutional guaranty is well defined. The State may take his property for public uses, upon just compensation being made therefor. It may take a portion of his property by way of taxation for the support of the government. It may control the use and possession of his property, so far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property. The doctrine that each one must so use his own as not to injure his neighbor-sic utere tuo ut alienum non laedas-is the rule by which every member or society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority. Except in cases where property may be destroyed to arrest a conflagration or the ravages of pestilence, or be taken under the pressure of an immediate and overwhelming necessity to prevent a public calamity, the power of the State over the property of the citizen does not extend beyond such limits."
Originally, zoning had a direct relationship to public health and safety - not having a slaughter house in the middle of a residential neighborhood; not having a livery stable next to hotels; not having brick making or industrial businesses in a residential area. So, under the legitimate police powers, certain commercial businesses were relegated to areas away from houses. (Nuisance per se and nuisance in law.)
The "police power" was originally associated with regulation [to prevent injury] for the general welfare. Somehow, this became twisted into regulation for [promotion of] the general welfare. This can be seen in the 1925 California Supreme Court decision in Miller v. Board of Public Works, 195 Cal.477, 485, 234 Pac. 381 where the court described the "police power" expanded from the original concept as follows:
"In its inception the police power was closely concerned with the preservation of the public peace, safety, morals and health without specific regard for 'the general welfare.' The increasing complexity of our civilization and institutions later gave rise to cases wherein the promotion of the public welfare was held by the courts to be a legitimate object for the exercise of the police power. As our civic life has developed so has the definition of the 'public welfare' until it has been held to embrace regulations 'to promote the economic welfare, public convenience and general prosperity of the community."
In the case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926,) the Court recognized the concepts of the "general welfare" as within the police/municipal powers justifying regulation. The Court also accepted the wisdom of the legislature as sufficient for the purposes of regulation as long as they could not be proven to be arbitrary or unreasonable and a "substantial relation" to the police powers could not be disproven.
In Gorieb v. Fox, 274 U.S. 603 (1927), although anchored in public fire and vehicle safety, we see the regulatory justification expanded under "general welfare" to include aesthetics, comfort and promotion of a "better home environment."
So there you have it - the subtle shift away from individual rights in property to the creation of an expanding overriding public interest to which our individual property interests are subservient.
According to California Real Estate Principles, (Third Edition), by Dennis McKenzie et. al., c.1988, pgs. 2-3, the law defines property as "that which is the subject of ownership." Ownership is essentially "the right of one or more persons to possess and to use the thing which is owned, to the exclusion of others."
McKenzie enumerates universally accepted "property rights" inherent in the concept of ownership, or "bundle of rights" to include:
The right to own property;
The right to possess property;
The right to use property;
The right to enjoy property;
The right to encumber property;
The right to dispose of property;
The right to exclude those who do not share ownership of the property from all the above mentioned rights.
The original purpose of the Fifth Amendment was to make a person "whole in his estate" for any personal property that had to be taken for legitimate public use. To the extent that any of these property rights are valuable, their diminishment should be compensible under the fifth amendment, (certainly the factor of exclusivity has been substantially diminished.)
In the case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926,) the Court recognized the concepts of the "general welfare" as within the police/municipal powers justifying regulation. The Court also accepted the wisdom of the legislature as sufficient for the purposes of regulation as long as they could not be proven to be arbitrary or unreasonable and a "substantial relation" to the police powers could not be disproven.
"I write separately only to express my view that the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce." - Clarence Thomas
"Smart Growth", here we come.
Scratching my head. Every law has a substantial relation to police powers.
Why? Because of lack of political will, or lack of technical means?
Again:
The Court also accepted the wisdom of the legislature as sufficient for the purposes of regulation as long as they could not be proven to be arbitrary or unreasonable and a"substantial relation" to the police powers could not be disproven.
Is it the same meaning to substitute unenforceability could not be disproven.?
Not every law, but any law of any material consequece. A law declaring a national "Moose and Cheese Week" probably wouldn't, but it seems that it would be assumed to have one until proven otherwise.
But see marsh2's #15. That which was unenforceable before has now become enforceable. What changed?
They just didn't have "implementing language" before?
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