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Property Rights and Constitutional powers
The Fifth Amendment & the "takings
The matter at stake:
When does governmental action through regulations go
so far with regard to the use of land that the value of the property
is so negatively effected that the regulation constitutes a "taking"
( "taken for public use without just compensation."), in law?
(common law, court decisions, & administrative rulings)
"while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking."
legal maxim from Oliver Wendell Holmes
"all property in this country is held under the
implied obligation that the owner's use of it shall not be injurious
to the (neighbor) community"
"a person may not use their property in such a
way as to harm the life, liberty or property of their neighbors."
belief expressed by Teddy Roosevelt, 1912, when campaigning for President on the Bull Moose, or Progressive Party ticket.
Does a strict interpretation of the "takings clause"
invalidate State and local public health, zoning or environmental protection
statutes where these rules deprive an owner of the customary use [ &
thus the marketable value ] of their land?
When regulating property the statute must be necessary
to protect the public health, reduce the risk to public harm (noxious
use), or demonstrate the greater benefits to the community of the regulation
when it limits the use of private property.
Who can afford to compensate land owners for the "fair
market value" of their real estate when courts find that regulations
amount to a taking? (tax payers?)
property - anything owned by an individual, or corporation, or institution that has commercial, or exchaange value
(copyrights, real estate, bonds, securities, chattel, )
5th Amendment- (Bill of Rights) "No person shall
be held ... nor be deprived of life, liberty , or property without
due process of law; nor shall. [see next line]...."
takings clause (last line of the 5th Amendment) "
nor shall private property be taken for public use without just compensation."
Is this protection adequate?
"wise use" - a phrase taken from the ideas
of Gifford Pinchot (1900s conservationist) and appropriated by an extreme
group of western land interests to promote -- under the guise of private
property rights -- an anti-environmental political agenda.
For further reading:
Lucas v. South Carolina Coastal Council No. 91-453 (US June 29,
1992) [Scalia ; Blackmun dissented]
Richard Epstein, "Takings: Descent and Resurrection,"
1987 Supreme Court Review Volume 1, page 4.
Michael Ira Heyman, "The Great Property Rights Fallacy"
Cry California Vol. 3 (Fall, 1968): pages 29-34.
Above is the work of
Rollins College March 1, 1997