“Every man has by nature the right to possess property as his own.”
Pope Leo XIII
Students of American history gain an appreciation for the basic right of individuals to own and manage private property. So fundamental was this concept, our Founding Fathers codified it in both the Bill of Rights, “… no person shall … be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation,” and again in the Fourteenth Amendment.
These constitutional provisions protect the property rights of citizens. They also permit the power of eminent domain; governmental acquisition of private property for public use through the process of condemnation. In the exercising that power, however, the government is obligated to pay just compensation for every such “taking”.
During the nation’s first century, governments used judicious restraint in their exercise of eminent domain powers; although compensation disagreements with displaced property owners were not uncommon. In general, constitutional guarantees were respected.
Beginning in the early 1930s, however, property and other rights of Americans came under siege from a hybrid form of government, one not envisioned by the authors of our constitution … the regulatory bureaucracy.
These governmental entities promulgate rules and regulations affecting the lives of all Americans. Failure to comply with their often narrow and controversial dictates can result in severe fines, prison terms and abridgements of fundamental rights.
Entities ranging from the OSHA, the EPA and the Fish & Wildlife Service to local zoning and rent control boards, historic societies and conservation commissions can, on nothing more than hearsay or suspicion, with the stroke of a pen, declare an individual’s property to be an environmental hazard, a wetland, a habitat for an endangered species, in noncompliance with some obscure town ordinance, an historic site or perhaps a nesting locale for some migratory bird.
When such a ruling occurs, owners quickly discover their rights to the reasonable use of their property can be severely restricted, while its value can plummet … sometimes to nothing. It also becomes the owner’s responsibility to disprove the regulator’s contentions, thereby obviating due process and presumption of innocence.
In their zeal to achieve goals like protecting the environment and micro-managing community development, these regulators forget a more sacred obligation to protect constitutional rights of the people the purport to serve.
Several years ago, the Supreme Court finally recognized actions taken by regulatory agencies could be as ruinous to the interests of property owners as outright condemnation. In Lucas v. South Carolina Coastal Council, the Court held governmental entities responsible for issuing regulations which denied owners the use and value of their property must provide just compensation.
This property rights victory proved elusive and short-lived. The court’s spurious doctrine contained an enormous loophole, requiring takings be an all-or-nothing situation, with compensation required only when a property’s value has been reduced to zero.
The regulators were quick to seize on the opening. Their new game plan simply restricted property usage while leaving its ownership in tact. Therefore, while a property’s value might be reduced by 25%, 50% or even 90%, no compensation is required.
This strategy sired yet another threat to property rights, federal acquisition of rights over private land. This movement has gained widespread support among environmental and ecological statists who believe only the government (yes, the same crowd which brought us the nation’s worst hazardous waste site in Hanford, Washington) can manage effectively sensitive environments.
In 1991, a coalition of ecocrats tried to railroad through a measure preempting the property rights of landowners along the Pemigewasset River. Well-rehearsed, they were quick to brand the New Hampshire Landowners Alliance, an adhoc organization of affected landowners which mobilized and successfully opposed this power grab as anti-environmental anarchists.
Like all statists, they can’t comprehend the vast majority of land owners are environmentally sensitive and responsible individuals. Moreover, landowners also spend significant time enjoying the same wetlands, woodlands and mountains the environmentalists seek to protect.
In the meantime, this continued willingness of our government to condemn the property uses of its citizens without compensation is the mark of an unworthy and illegitimate government. Those morally opposed to such environmental, historic, zoning or other forms of socialism must continue to aggressively fight the further encroachment of big government lest another bundle of endangered rights becomes extinct.
