All Commentary
Thursday, August 1, 1974

The Taking Issue

Mr. Siegan is the author of Land 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.

There is a small clause in the Constitution of the United States which does not frequently claim public attention, yet its importance cannot be overestimated. It is part of the Bill of Rights contained in the Constitution and it is the one that protects the individual against government greed. I refer to that last clause of the Fifth Amendment to the Constitution which reads as follows: “… nor shall private property be taken for public use without just compensation.”

This is known as the “taking clause,” for it prevents governments from taking away or confiscating the property rights of the individual.

There would seem to be nothing extraordinary about a rule in a non-totalitarian society that requires government to pay for property it takes or acquires from its constituents. It places the government in the same status as any stranger to the property — and after all, government consists of a great many strangers. It is a prohibition against theft by government in a sense comparable to innumerable other laws that prohibit theft by any of its citizens.

Under the terms of this clause, the courts have upheld as legal many laws which deprive owners of valuable property rights. Still, over the years, even as there has been this erosion of property rights, the clause has tended at least to prevent outright confiscation of property and many zoning and other regulatory laws have been invalidated.

It costs more money to buy property than to take it — and this obvious fact has been a cause of concern to those who believe that government can use the property more wisely than its owner. A private group, The Task Force on Land Use and Urban Growth, in a widely distributed summary report and book, recently expressed concern that the taking clause will make excessively expensive the land use policies they would like adopted and consider in the public interest. They propose that more land be restricted for open space and for other purposes they believe desirable, and find the taking clause to be a serious obstacle to these objectives. The task force therefore has suggested that the whole taking issue be reconsidered and that henceforth development rights for private property rest with the community, rather than with the property owners.

How Freedom Is Lost

Similar arguments can be made with respect to any scarce resource or commodity — and we may expect other “task forces” to proceed on other fronts. There are always some benefits to be derived by taking from some and giving to others.

Two members of the task force are high officials of major banks and I am confident they would agree that regulations lowering the bank rate from 10 per cent to 2 per cent would certainly benefit many. But such regulations would also destroy our banking system which benefits the vast majority.

The inevitable results of increasing the number and amount of such controls is to terminate the freedom of the individual to acquire and own property — in all likelihood the freedom considered most important by most of the people.

Nor is it fair that the burden for providing the presumed welfare of others should be borne by the owners of only those properties used for public purposes. The accident of ownership and location would select those persons in society to carry the burden of paying for benefits that will accrue to others. It amounts to a rather crude way of redistributing wealth on a most unfair and irrational basis.

The taking clause not only serves the equitable and moral concerns I have set forth, but it also furthers very functional values in our society. First, when things cost nothing, there is no limitation upon their acquisition. This being a time when many municipalities and individuals would like to curtail future growth, they could quite readily do so if there were no cost involved in restricting much of the balance of their land for parks or open space. A great amount of land would thereby be removed from development or production to the detriment of business, employment, industry, agriculture, housing, etc.

Opportunity Costs

America, as a land of parks and open space, would also be America, the land of worse housing and higher rents. Budgetary considerations at least curb an insatiable government appetite and operate in the interest of a more efficient and equitable allocation of our resources.

Second, the incentives of our society for owners and developers to own and use land for productive purposes would be destroyed. Why own land or contemplate using it if it is subject to confiscation at the whim of government? Or if one does own land zoned for certain purposes, he would rush to use it before the politicians changed their minds. At the very least, a more chaotic market would result.

The Bill of Rights in our Constitution has often thwarted the aims and desires of government and its officials, and that is exactly the effect the authors intended: to protect the individual against the might of government.

True to form, the taking clause worries officials of the Council on Environmental Quality, the federal environmental agency that has been considering land use legislation. In what appears to be a strong effort to minimize the legal importance of this clause, the Council has published and distributed a 329 page book titled The Taking Issue, that perhaps might more appropriately have been entitled The Stealing Issue. The book fails to mention that the major victims, in addition to those who own certain properties, would be those who benefit from a system allowing private ownership — and that in the final analysis, includes just about everybody.

Copyright 1973 Bernard H. Siegan  

  • Bernard H. Siegan (1924-2006) was a longtime law professor at the University of San Diego School of Law, libertarian legal theorist and a former federal judicial nominee to the United States Court of Appeals for the Ninth Circuit.