LEGAL HISTORY OF PROPERT AND THE "TAKINGS" CLAUSE
The following articles and treatises are a must-read if landowners are going to fully understand property rights and the takings clause:
"1. Fordam Environmental Law Review"
When Does Government Regulation Go Too Far?
"2. Property and the RIGHT TO EXCLUDE"
"3. Property Rights and the Constitution - CATO Institute"
4. The Original Understanding of the Takings Clause
(an excerpt)
William Michael Treanor
Georgetown University Law Center
The champions of the property rights movement claim that they are fighting to restore the original understanding of the Takings Clause of the Fifth Amendment. They invoke James Madison and other founding fathers as support for proposed statutes that require the federal government to pay property owners when it prevents them from harming the environment or jeopardizing the survival of endangered species. Wetlands regulation, it is often said, "takes" property by diminishing its value, and the founders adopted the Takings Clause to ensure that, when government regulations diminished the value of property, the owner would receive compensation. Increasing numbers of lawsuits are being filed on the same theory. Established Supreme Court standards for resolving takings claims, litigants contend, are at odds with the founders' belief that property ownership was a natural right that the government could never limit. These suits urge courts to return to the founders' vision and claim that, once that vision is revived, the judiciary will routinely invalidate local land use and environmental protection standards.
Widely shared and forcefully repeated, this conception of the original understanding has come to play a central role in the debate about the Takings Clause. But it is demonstrably and dramatically wrong. The original understanding of the Takings Clause was, very simply, that the federal government had to compensate the property owner when it physically took property -- such as when it took land to build a fort. The clause did not require compensation for regulations under any circumstances.
Property rights advocates ignore the plain language of the clause, the evidence about what the founders and other Americans in the early republic thought the clause actually meant, and the founders' views about property and democratic government. Claiming to rely on history, property rights advocates embrace, instead, a myth.
Despite the public prominence of the property rights argument, there is actually nothing novel or particularly controversial about the conclusion that the Takings Clause was limited to physical seizures. With some notable exceptions, prominent legal scholars of all shades of political opinion--including such leading conservatives as former judge Robert Bork and former Solicitor General Charles Fried--support the conclusion that the property rights argument has no plausible foundation in the original understanding of the Takings Clause. Justice Scalia, the Supreme Court Justice who most consistently argues for a broad reading of the Takings Clause, has acknowledged that until well into the twentieth century, "it was generally understood that the Takings Clause reached only a ‘direct appropriation' of property or [its] functional equivalent...." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1114 (1992). The only remarkable aspect of the original understanding of the Takings Clause is how rarely the original understanding of this clause is taken into account in political and legal debates over property rights.
Plain Language
Despite all the controversy about its meaning, the language of the Takings Clause--"nor shall private property be taken for public use, without just compensation"--is perfectly straightforward. Compensation is necessary only when property is "taken." In other words, the only time when the government must compensate the property owner is when it physically seizes the property. The text does not require compensation when regulations diminish the value of property. Indeed, the clause does not even mention regulations.
Proponents of a broad reading of the Takings Clause counter that, at the time of the ratification of the Takings Clause, "property" sometimes meant "anything of value." Thus, according to this view, whenever the government diminishes the value of property through regulation, the Takings Clause can properly be read to require payment of compensation.
The problem with this view is that it ignores a critical part of the clause, the word "taken." "Take" means, and meant at the time the Fifth Amendment was ratified, "physically seize," not "diminish in value." All the debate among judges, scholars, policy-makers, and politicians about precisely what the Takings Clause means tends to obscure this obvious point, but it can be illustrated with a simple example. If I tell my daughter that she cannot play with her ball in the house, she has lost something of value--the right to play with the ball in the house. I have regulated what she can do with the ball, but I haven't "taken" it. She is still free to play with it outside. I only "take" her ball when I physically seize it. Only a child immersed in the literature of the property rights movement would argue otherwise. The plain language of the Takings Clause is to the same effect. Even if the word "property" is read to cover anything of value, compensation is owed only when property is "taken." Regulations, by their nature, are not "takings."