The right to private property—that is, the fruits of an individual’s physical and intellectual labor—was known to be a keystone to a free society’s foundation. It is a natural right, protected by natural law. In this there was no divergence between the Federalists and Anti-Federalists.
Given the primacy of property rights, the Framers insisted that certain safeguards must be incorporated in the Constitution to protect against excessive government intrusion. Therefore, as part of the Bill of Rights, the Fifth Amendment provides explicitly, “. . . nor shall private property be taken for public use without just compensation.”11
Referred to in legal circles as the “Takings Clause,” this provision obligates the government to compensate the property owner when the government takes private property for some putative public good. However, much debate surrounds the issue of what actually constitutes a “taking.” Those who insist on the all-encompassing power of government claim a taking occurs only when the government physically seizes property. Those who, like the Founders, extol the indispensable value of property rights in preserving a civil society recognize that a taking occurs also when the government—by an act of Congress, state legislature, or administrative regulation—effectively destroys or substantially diminishes the market value of private property. These “regulatory takings,” as they are called, are often indistinguishable from actual, physical takings. These types of governmental actions may not constitute an actual physical appropriation of property. Instead, they impose significant restrictions on the owners’ use of the property. Consequently, the property owner can suffer severe economic damages should the restriction prevent the economic development or private use of the property.
Again, the Framers placed the highest importance on property rights, which they sought to protect from the government they were establishing. They would not have cared which branch of the federal government confiscated private property or whether it was confiscated outright or by way of diminished value or use. For the Framers, private property was inviolable, protected expressly in the Fifth Amendment.
Today the Supreme Court, endlessly seeking ways to reinforce if not promote the growing powers of the federal government, and especially the extensive and growing tentacles of the administrative state, discounts both the nation’s history and heritage. It has limited severely the factors that constitute a regulatory taking that justify compensating the property owner.12
The Court has issued a host of opinions addressing the application of the Takings Clause. In 1922, Associate Justice Oliver Wendell Holmes Jr. first recognized a regulatory taking in Pennsylvania Coal v. Mahon. He wrote, “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”13 The imprecise standard of “too far” has confounded subsequent courts, which have attempted to apply a jumbled mass of tests and factors to determine whether a taking has occurred.
The Court has said that in certain limited instances, a regulatory taking will be considered a taking for purposes of the Fifth Amendment and the owner will be awarded “just compensation.” In cases where there is a deprivation of “all economically beneficial use” of a property, the Court has acknowledged that the Fifth Amendment mandates that the property owner be awarded just compensation. In these cases, the regulation has made the property completely worthless. For partial regulatory takings, instances where the regulation only partially affects the value of the property, the outcome is not so certain. In 1978, in Penn Central Transp. Co. v. New York City, the Court wrote that there is no “set formula” for determining whether a partial regulatory taking merits compensation, but there are “factors that have particular significance.”14 These factors include “the economic impact of the regulation, particularly the extent to which the regulation has interfered with distinct investment-backed expectations.”15
In 1992, in Lucas v. South Carolina Coastal Council, even Associate Justice Antonin Scalia indicated that a regulation devaluing a property of 95 percent of its value may not constitute a taking and the property owner would not necessarily be eligible for compensation.16 In 1993, in Concrete Pipe and Prods. of Cal. v. Constr. Laborers Pension Trust for So. Cal., the Court held that the “mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.”17 It is not enough for a property’s value to decrease as a result of the regulation; the owner must pass some convoluted test to establish a regulatory taking. In 2005, in Lingle v. Chevron U.S.A. Inc., the Court said it would also consider the “character of the governmental action . . . whether [the regulatory taking] amounts to a physical invasion or instead merely affects property interests ‘through some public program.’ ”18
These tortured rationales and unnecessarily complex tests discount a seminal and underlying principle of property rights—that is, the right to own and control one’s property is a natural, fundamental right that should receive the highest level of legal protection. The burden should not fall to the individual to justify the government intrusion as one that meets a series of complicated and incoherent tests to qualify as a taking. Rather, the burden should be on the government to justify the appropriation as one necessary for the public interest. Then the onus rests with the government to compensate the individual for the negative economic effect the burden places on the owner’s property interest.
This is not to confuse the government’s role in preserving private property rights under its police powers with a taking. Well before the adoption of our Constitution, it was understood that one neighbor did not have a right to interfere with the ownership and use of another neighbor’s property. For example, a property owner upstream does not have a right to use his property in a way that pollutes a stream flowing through the land of a property owner downstream, thereby destroying or diminishing the value of the downstream property. As such, the government is exercising its authority to protect private property rights, which also serves the societal good, not expand its power to confiscate or control private property for some asserted governmental purpose.
In the late 1980s, President Ronald Reagan issued Executive Order 12630, requiring federal agencies to consider the “taking implications” when an agency promulgated new regulations.19 The order “was needed to protect public funds by minimizing government intrusion upon private property rights and to budget for the payment of just compensation when such intrusions were inevitable.”20 Although a noble acknowledgment of the importance of property rights, Executive Order 12630 lacked any enforcement mechanisms, because it did not provide a cause of action. Consequently, property owners could not use the agency finding in proving their claim that federal government action was considered a taking.
It is indicative that so extensive is the government’s taking practices that there is no reliable calculation on its aggregate costs to society—either its costs to property owners or the costs to government in those relatively limited cases in which it actually compensates property owners. Meanwhile, there is no question that regulatory takings are swelling as government itself swells.
• • •
The proposed amendment does a number of things. It acknowledges the crucial distinction between the government exercising its legitimate police powers to protect private property rights and its obligation to compensate property owners when government action—whether a statute, administrative regulation, or executive order—interferes with the ownership and use of private property for an asserted public interest. If the government action serves a public interest, then the public must assume responsibility for the cost and compensate the property owner who suffers a loss in excess of ten thousand dollars. The proposed amendment will force the government to make more extensive and comprehensive cost-benefit calculations when exercising its legal authority, given that the cost burden shifts from the individual to the government.
Moreover, the proposed amendment creates an expanded legal basis for private property owners to assert a constitutionally acknowledged
and protected right. The notion that a taking must be physical, total, or near total to trigger a “just compensation” defies the Framers’ intent and the Fifth Amendment’s purpose. It also renders moot the convoluted precedents and ad hoc tests promulgated by the Supreme Court, and instead establishes a more stable and predictable legal environment for property owners and users.
Finally, the proposed amendment is not limited to takings by the federal government. It applies to all levels of government. While I acknowledge that the state legislatures themselves will undoubtedly determine the scope of this proposed amendment, or one similar in purpose, if and when they decide to appoint delegates to attend a convention, I would encourage them to control their own abuses of state citizens. When an individual’s property is diminished or devalued by government action, the individual does not much care which level of government is responsible for violating his property rights. After all, the right to own property and use it was so important that the states themselves insisted on making the protection unambiguous by incorporating the Takings Clause in the Fifth Amendment.
CHAPTER NINE
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AN AMENDMENT TO GRANT THE STATES AUTHORITY TO DIRECTLY AMEND THE CONSTITUTION
SECTION 1: The State Legislatures, whenever two-thirds shall deem it necessary, may adopt Amendments to the Constitution.
SECTION 2: Each State Legislature adopting said Amendments must adopt Amendments identical in subject and wording to the other State Legislatures.
SECTION 3: A six-year time limit is placed on the adoption of an Amendment, starting from the date said Amendment is adopted by the first State Legislature. Each State Legislature adopting said Amendment shall provide an exact copy of the adopted Amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States within fifteen calendar days of its adoption.
SECTION 4: Upon adoption of an Amendment, a State Legislature may not rescind the Amendment or modify it during the six-year period in which the Amendment is under consideration by the several States’ Legislatures.
AS DISCUSSED EARLIER, ARTICLE V of the Constitution sets forth the two processes for amending the Constitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . .1
As the text and history make clear, the amendment processes are difficult. A supermajority of two-thirds of the members of both houses of Congress is required to propose amendments, or two-thirds of the state legislatures are required to call for a convention to amend the Constitution—which means thirty-four states. Moreover, three-fourths of the states—or thirty-eight states—must ratify the proposed amendments either by votes of the state legislatures or state conventions for them to be incorporated into the Constitution.
The level of complexity in the amendment processes was intentional. The Framers envisioned a clear and specific purpose for the system of government they established. The Constitution was not meant to be a detailed list of laws and edicts to micromanage people’s behavior. It was not meant to change with factional or majoritarian impulses. And it was not meant to serve the political expedients of a class of governing masterminds and their fanatical followers. The Constitution’s authors intended it to serve as a steady, reliable, and not easily altered apparatus of governance built upon “unalienable” rights by which a huge, diverse, and vigorous society could successfully govern itself. The amendment processes were intended to elevate any matter addressed in a proposed amendment beyond the realm of day-to-day political issues.
In the 226 years since the 1787 Convention, there have been only twenty-seven amendments added to the Constitution, including the first ten amendments—the Bill of Rights. Those were ratified simultaneously on December 15, 1791. The small number of successful amendments, however, is not due to a lack of effort. Approximately 11,539 proposed amendments to the Constitution have been introduced in both houses of Congress between 1789 and January 2, 2013.2
However, as discussed at length in preceding chapters, we live in a post-constitutional period due to the Progressive movement’s successful political counterrevolution. The Statists have constructed an all-powerful centralized federal government, unleashing endless social experiments in pursuit of utopian designs. The federal branches have used judicial review, congressional delegation, broad abuses of the Commerce and Takings clauses, and the power of the purse (taxing, spending, and borrowing), among other things, to commandeer the sovereignty of the states and the citizenry. Indeed, the states and the citizenry are now consumed by an elephantine array of federal laws, regulations, and rulings, which torment, coerce, obstruct, and sabotage the individual’s autonomy. The states that gave the federal government life now live mostly at its behest.
In 1908, Woodrow Wilson made clear the plans he and others set in motion when he declared, “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle.”3 Wilson added, “Living political constitutions must be Darwinian in structure and practice,” meaning the federal government must be in a constant state of motion and evolution.4 Consequently, the individual is without independent, God-given natural rights, which form the basis for America’s founding. The Constitution’s text and the Framers’ intent are of no consequence—unless, of course, they can be said to justify if not compel the republic’s self-mutilation. But Wilson conflates the nature of a healthy and dynamic civil society, where individuals are mostly free to pursue their interests, with what was to be the character of the federal government—a stable, predictable, and just governing institution, the purpose of which was the civil society’s conservation. Wilson’s prescription, and that of the Statists, empowers the federal government to extend its authority in ways large and small, devouring the very civil society it was established to safeguard. Unmoored from the Constitution, federal power becomes more centralized and concentrated, and increasingly difficult to define or proscribe.
The Tenth Amendment underscores generally and simply the division of authority between the federal and state governments:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.5
The Constitution would not have been ratified had the Federalists refused to agree to the inclusion of this explicit recognition of state sovereignty, carried over from the Articles of Confederation, as part of a series of amendments—which would be adopted when the First Congress convened. It is a declaration of the indispensable role of the states in American life, which is loosely referred to as federalism.
The most successful rhetorical attack on federalism today involves past slavery and segregation. As I explained in Liberty and Tyranny, it is more complex than the Statists recount. “It is a misreading of history to singularly condemn federalism for slavery. While there is no debating or excusing that southern states sanctioned slavery, at times they did so with the help of the federal government. Moreover, there is also no questioning that other states, mostly in the North, instituted policies and laws not only prohibiting slavery within their own borders, but defying efforts by southern states and the federal government to enforce slavery in the South.”6 For example, “prior to the Civil War, and at the behest of the southern states, in 1793 and 1850 the federal Fugitive Slave Laws were enacted to force recalcitrant northern states to return escaped slaves to their southern owners. Many northern states resisted by
passing personal liberty laws, which created legal obstacles to the deportation of slaves back to the South. In the 1842 Prigg v. Pennsylvania case, the federal Supreme Court ruled these laws unconstitutional, arguing that they sought to preempt federal 1aw, although it added that the northern states were not required to affirmatively assist the southern state that sought the return of the escaped slaves. In 1857, the Court ruled in Dred Scott v. Sandford that no slaves or descendants of slaves could be U.S. citizens, and that Congress’s Missouri Compromise of 1820, which prohibited slavery in much of the new territories, was unconstitutional, for it denied slave owners their personal property rights. . . . [N]ot until 1862 did the federal government abolish slavery in the District of Columbia, which was wholly controlled by federal authorities. . . . ”7
The Liberty Amendments: Restoring the American Republic Page 13