Commentary

Mrs. Morella’s Unusual View of the Constitution

In voting against the Private Property Protection Act of 1995, as she did on March 3, Montgomery County’s own Connie Morella has once again demonstrated her distance not only from the Republican Party but from the Constitution she has sworn to uphold.

Fortunately, most Republicans, and not a few Democrats, rose to the occasion. That Mrs. Morella was not among them is worth at least a comment.

The Fifth Amendment’s Takings Clause is simplicity itself. It permits public officials to take private property for public use — provided they pay the owner just compensation. The requirement serves two basic functions. One is elementary fairness: were government to take without compensation it would be no better than a thief. The other is fiscal discipline: requiring the public to pay for the goods it acquires disciplines the public appetite.

Unfortunately, the Supreme Court’s deference to the modern regulatory state has produced what the Court itself recently called 70-odd years of ad hoc regulatory takings jurisprudence. In fact, the rule today in most cases is that only if an owner is “lucky” enough to be wiped out by a regulation does he get compensation.

Since most regulations fall short of that - leaving the owner with some value as they turn his property into a nature preserve, a scenic view, a wetland, or some other “public good” — owners rarely get relief when regulations devalue their property. The bill that just passed the House is aimed at correcting that problem by compensating owners when regulations that prohibit otherwise rightful uses reduce the value of property by more than 20 percent.

But Mrs. Morella takes exception. In fact, she was one of 15 “moderate” Republicans who wrote to the chairman of the House Judiciary Committee on Feb. 14 to complain, of all things, that the bill would create “a new entitlement program” for property owners. Never mind that this “entitlement program” is already in the Constitution, the point Mrs. Morella seems to have missed in the letter she signed is a point of principle. After all, there is all the difference in the world between being entitled to just compensation when your property is taken and being “entitled” to what belongs to someone else. To read the letter, one would think this bill created just one more welfare program.

Yet the letter Mrs. Morella signed misses in other ways too, as when it claims that under the bill “the federal government could be required to compensate a landowner who is denied a permit to site a hazardous waste facility over an aquifer that supplies drinking water to a nearby community.” Nothing in the bill requires any such thing, the disinformation of environmentalist opponents notwithstanding. In fact, the bill explicitly excludes compensation when regulations prohibit what owners have no right to do in the first place.

Were Mrs. Morella’s indifference to constitutional requirement an isolated example, one might overlook it. But it is her fate, misplaced concern about creating a new “entitlement program” that is the anomaly, for she has long supported a wide range of welfare schemes that are not only not required by the Constitution but flat out prohibited by it. The Constitution is, after all, a document of delegated, enumerated, and thus limited powers, as the Tenth Amendment makes clear. Yet Mrs. Morella would doubtless be among the last to grant that most of what the federal government does today is illegitimate because done without explicit constitutional authority. If so, it may be time for Montgomery County Republicans to start thinking seriously about getting in step with the rest of their party — and with the Constitution as well.

Roger Pilon is director of the Center for Constitutional Studies at the Cato Institute.