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Thursday, April 1, 1993

Grand Theft and Petit Larceny: Property Rights in America

Without the ability to be secure in one’s person and possessions, all rights would be meaningless.

For those who, like myself, are uninitiated in the intricacies and nuances of legal history, the language of the Fifth Amendment is straightforward: “nor shall private property be taken for public use, without just compensation.” Mark Pollot’s Grand Theft and Petit Larceny explains how courts gutted this seemingly explicit clause.

As an attorney in the Reagan White House, Pollot drew up an executive order that attempted to curb federal takings of private property. Although a discussion of his role might have been interesting, Pollot is too disciplined a writer to stray into politics.

Instead he limits himself to a thorough, if sometimes plodding, account of legal precedent and theory. Pollot defines a “taking” as interference with any portion of a property owner’s rights, and notes that constitutional history and common law support this view. Reaching back to Magna Carta, he discusses the rationale for property rights and demolishes the contemporary myth that they are somehow inferior to other rights.

Justice Potter Stewart wrote, “property doesn’t have rights, people have rights . . . .” Pollot shows that in the minds of the founders, property rights were, if anything, more fundamental than other rights. Without the ability to be secure in one’s person and possessions, all rights would be meaningless. Freedom of speech and religion, for example, mean little if the government can confiscate printing presses and churches.

The founders recognized this truism through hard experience. First under British rule and subsequently under the Articles of Confederation, Americans found themselves hounded by government interference at every turn. The founders scuttled the Articles largely because state legislatures were blocking commerce, meddling in private contracts and succumbing to every sort of special interest. Yet today’s courts regularly accept such legislative mischief.

The judiciary justifies this abdication of its responsibility with a bewildering array of sophistries. Modern court rulings often border on self-parody. For example, the courts have justified uncompensated takings because:

• the owner knew when he purchased property that the government might, in the future, ruin it through regulation;

• a builder was already compensated for harsh regulations because the government had “allowed” him to build in the first place;

• the builder was already compensated because the government granted him the privilege of using other properties as he wished;

• enforcing the Constitution would be too expensive.

Although Pollot limits his discussion to takings, he provides insights into other issues as well. For example, in a discussion of the founders’ suspicion of legislatures, Pollot shares the following quote from James Madison: “If this spirit [that nourishes freedom] shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to accept everything but liberty.” As Pollot notes, this is an especially telling statement considering that today’s Congress exempts itself from dozens of laws, such as the Civil Rights Act of 1964 and the Occupational Safety and Health Act.

Pollot carefully dismantles the argument that paying compensation for takings would prevent vital regulations. First, if a regulation is truly vital, then the public can afford to shoulder its cost. Either a regulation’s benefit is greater than its cost, in which case society reaps a profit even after paying compensation; or, a regulation’s benefit is not greater than its cost, in which case the regulation should be discarded.

Second, as Pollot points out, courts must rule on what’s constitutional, not what’s convenient. Trial by jury is costly; should this constitutional safeguard also be discarded?

Pollot pulls a quote from the constitutional convention to make a third point:

It is natural for men, who wish to hasten the adoption of a measure, to tell us, now is the crisis—now is the critical moment which must be seized, or all will be lost: and to shut the door against free enquiry. . . . This has been the custom of tyrants and their dependents in all ages.

In today’s atmosphere of environmental hysteria, this admonition is particularly valuable.

Pollot offers a four-pronged strategy to restore property rights: education, participation in the legislative process, participation in the administrative process, and litigation. As a tactic for restoring property rights, litigation presents a disproportionate share of both risk and potential. Recognizing this, Pollot sets aside a separate chapter to discuss the limits and possibilities of litigation.

Unfortunately, Pollot’s stiff prose sometimes obscures the absurdity of modern court rulings. In Berman v. Parker, for example, the court refused to consider some issues because to do so “would result in courts deciding what is and what is not a governmental function.” Reflecting on this staggering assertion, Pollot intones, “the difficulty with this statement is that determining such functions is precisely the role of the courts under the provisions of the Constitution and the Bill of Rights.”

Pollot’s restraint adds credibility to his work, but tends to cramp his writing style. In the introduction, Pollot confides that “the pleasure I ordinarily derive from writing . . . was singularly lacking when I wrote this book,” and adds that writing “about the daily violation of civil rights” is burdensome.

Nevertheless, Pollot’s book is well constructed and packed with information. It concludes with an afterword that makes sense of several recent Supreme Court cases. Those who wade through this sobering and useful work will be glad they did. 

Grant Thompson is an intern at Reason magazine under an Institute for Humane Studies fellowship.