Mr. Siegan is the author of Lend Use Without Zoning and many articles on the subject. He practiced law for 20 years in Chicago before moving in 1973 to La Jolla, California, where he is professor of law at the University of San Diego Law School.
The controversy continues on what I would have thought was a long settled and filed issue in American life, that private property should not be taken for public use without just compensation.
These are the exact words of the "taking clause" of the Fifth Amendment to the U.S. Constitution. It is under considerable fire. This clause is part of the Bill of Rights and like other provisions of that document, it bulwarks the rights of the individual against the excesses and abuses of the State.
However, individual rights are most discomforting to those who believe that politicians and office holders know or can be made to know what is best. It is hard to imagine that such a notion can still exist in view of what is daily reported on TV and in the newspapers. But, regrettably, that position is much alive and well.
The taking clause presents serious problems for those who want land used only for certain special purposes and think they can accomplish that objective through government action. For example, it would cost enormous amounts to purchase the waterfronts and mountainous areas, canyons, and other lands that the environmentalists consider "ecologically sensitive."
Were the taking clause not in the way, government could completely control the use of those properties for the purposes intended and not have to compensate the owners. Development could be prohibited and the land kept in its natural state. Some think the public would be saved a lot of money.
Thanks, but no thanks. It could be the most costly process ever undertaken by government. For the prime casualty would be the country’s private property system. If that floundered, who would build the houses and the commercial and industrial developments, and at what or whose expense?
Far fewer people would invest in land, confronted with the possibility that the government could take it away. Or if they did, they would demand a higher rate of return given the added risk of that occurring. For both reasons, there would be far less real estate to provide for the basic needs of people, and the cost would rise significantly. Employment and commerce would suffer.
There is also the equally great cost to our society when harm befalls our system of property rights. The taking clause, despite its erosion through the years, is still a guarantee against losing one’s land or home.
It is tempting to believe that the Federal and local governments would use their power justly and with restraint and perhaps solely against the "big interests." But in the absence of the taking clause, the government’s good faith would have to be relied on — and that is exactly why we have a Bill of Rights. History shows governmental restraint bears up very poorly against political pressures.
Moreover, the "big interests" are always in a better position to fight against or work with government than ordinary citizens. The right to take or not to take away property would be another one of those powers politicians could sell for money, votes, or labor and services.
The threat to the taking clause is not an idle one. Already two books have been published by highly influential sources arguing in essence that the clause should not be interpreted to mean or does not really mean what it clearly says. One book was sponsored by the affluent Rockefeller Brothers Fund and the other by the President’s Council on Environmental Quality. The latter has cost the taxpayers over $65,000 — quite a sum, considering that its contents would be used against their interests.
There are thousands of small landholders and farmers in this country. They are entitled to all the protection they can get against the misdeeds of government. Their interests, among others, require strengthening and not destroying the taking clause.