Take the Taking Clause -- Please


December 19, 1991|By TRB

WASHINGTON — Washington. -- The Taking Clause of the Fifth Amendment (''nor shall private property be taken for public use, without just compensation'') is not one of your more fashionable constitutional freedoms. But it has a cult following among conservatives, who see it as the vehicle for a revival of so-called economic rights. This does not mean anything so bleeding-heart as a right to food or shelter or a job. It means the right to conduct your business unmolested by the government.

The Supreme Court has a couple of Taking cases this term. By June, we should have an answer to the question hanging over the court for years. Once conservatives have a secure majority, will they be content to make good on their own rhetoric about ''judicial restraint''? Or will they use the court's power to impose their political agenda?

The legal issue is: when does government action short of actually seizing your property amount to the same thing and therefore require compensation? In one of this year's cases, a man paid $975,000 for two beachfront lots in South Carolina. Before he could put up houses, the state rezoned the lots to forbid building. The lots are now worthless. The man argues, with some justice, that he is no better off than if the state had

bTC simply taken the land away.

This is an especially sympathetic case. But logically, the owner is no worse off than if, say, he'd owned four lots and a zoning change had halved their value. If the government takes one of your 10 acres, no one has trouble seeing that as a ''taking,'' even though you have nine acres left. How is it different if the government reduces the value of all 10 acres by one-tenth?

As University of Chicago law professor Richard Epstein argues in his 1985 book, ''Takings,'' any government action that reduces private property's value can be defined as a total deprivation of something. Law students are taught that property ownership is a ''bundle of rights.'' If a person is told he can't build above a certain height, he has been denied ''air rights'' just as completely as if air rights were all he owned.

Mr. Epstein is the godfather of the Taking Revival. Senator Joe Biden, D-Del., waved a copy of ''Takings'' with alarm in the Clarence Thomas hearings. But Mr. Epstein's thinking is actually more of a problem for Taking Clause enthusiasts than for skeptics. Mr. Epstein sees most of what the government now does as a violation of the Taking Clause: progressive taxation, all Social Security and welfare programs, virtually all regulations, in short any action by the government that burdens some citizens more than others. Most Taking cultists don't go so far. But Mr. Epstein's logic is rigorous. By contrast his half-hearted followers have no logical explanation for why they don't follow him over the cliff.

It used to be conservatives who argued that constitutional provisions should be interpreted modestly and in line with the original understanding of the framers. One such modest interpretation of the Taking Clause would be that it applies only to actual, physical seizures of property by eminent domain. That is what the framers had in mind by ''taking.'' Anything else is metaphor. And once you enter the land of metaphor, you are on your way toward Epsteinism.

Good liberals must take the Bill of Rights seriously, including the parts that are inconvenient. The Taking Clause, like the Second Amendment, is one of these.

In one sense property rights are more at risk from the tyranny of the majority than the liberty rights with which civil libertarians usually concern themselves. The distribution of property, unlike the distribution of liberty, is a zero-sum game. More freedom of speech for me need not mean less for you. But if 51 percent of the citizenry decides to vote itself more property, that property can only come from the other 49 percent. That is the abuse the Taking Clause is intended to prevent.

Nevertheless, my liberal heart does not bleed much for the ''victims'' of democratically enacted government regulations. Taking Clause enthusiasts overlook its one-sidedness. What about the many situations where government actions increase the value of someone's private property? Zoning is a classic example. The South Carolina saga is often reversed: a zoning change will add millions to the value of some property. Yet there is no constitutional mechanism for society to recoup that value.

It is a characteristic flaw of the American mindset to be overly concerned with discreet injustices and not concerned enough with the injustice of life in general. Thus we have an overblown medical malpractice law and no national health insurance. In the worthy cause of reducing litigiousness, conservatives want to make it harder for people harmed by private fault to sue for compensation.

Yet they don't worry about the swamp of litigiousness that would open if people could sue whenever they were affected in any way by a government regulation for the common good. Is the man whose land value is reduced through zoning more to be pitied than he who has no land to begin with?

?3 TRB wrote this commentary for The New Republic.

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