The Birth of the Property Rights Movement

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Over the past century, Americans who ownproperty--homeowners, landlords, businesspeopleof all kinds, even nonprofit organizations such aschurches and charities--have found themselvesincreasingly entangled in a web of regulatoryrestrictions that have limited what they can do withtheir property. Imposed in the name of an amorphous"public interest," those restrictions haveoften been unwarranted and severe, resulting inuntold personal and financial losses. By century'send they had led to the birth of the property rightsmovement and to a call for both legislative andjudicial redress. The movement is likely only togrow in the 21st century.

America's founding principles are groundedin the idea of private property. It is property,after all, that enables individuals and organizationsto exercise their other rights and enjoy theliberty that property affords. With the rise of theregulatory state during the Progressive Era, however,those rights were increasingly compromised,especially after the Supreme Courtupheld restrictive zoning in 1926. That decisionopened the door to a host of "permitting"regimes--federal, state, and local--the effect ofwhich has been to tell owners that they can usetheir property only after they have been authorizedto do so by government. That placedimmense and often arbitrary power in the handsof government, leaving owners to face a long andexpensive series of procedural and substantivehurdles before they could enjoy their propertyrights. Although the Court has checked some ofthose restrictions in recent years, owners stillbear the brunt of the burden of justifying theirrights.

To try to address those problems, at least 23states have enacted laws to protect private propertyrights. While most require government agenciessimply to "assess" whether their actionsmight impinge on property rights, a few providefor compensation to owners. At the federal level,Congress has considered three forms of legislation:measures that would require such assessments;measures that would provide statutorycompensation for certain federal agency actions;and measures that would remove proceduralroadblocks that frustrate efforts by owners tochallenge federal, state, and local regulations ofproperty. To date, however, none of those federalefforts has succeeded.

The property rights movement needs to continueto build on its successes. To be effective, however,it must adopt a principled approach. It mustreunite America with its common law and constitutionalheritage, which affirms that individualshave rights in their property and property in theirrights. Finally, it must recognize that the ultimateprotection for private property will be found inreducing government to its legitimate functions.

Steven J. Eagle

Steven J. Eagle is a professor at the George Mason University School of Law and the author of Regulatory Takings (2d ed. forthcoming).