Policy Analysis No. 404

The Birth of the Property Rights Movement

By Steven J. Eagle
June 26, 2001

Executive Summary

Over the past century, Americans who own property—homeowners, landlords, businesspeople of all kinds, even nonprofit organizations such as churches and charities—have found themselves increasingly entangled in a web of regulatory restrictions that have limited what they can do with their property. Imposed in the name of an amorphous “public interest,” those restrictions have often been unwarranted and severe, resulting in untold personal and financial losses. By century’s end they had led to the birth of the property rights movement and to a call for both legislative and judicial redress. The movement is likely only to grow in the 21st century.

America’s founding principles are grounded in the idea of private property. It is property, after all, that enables individuals and organizations to exercise their other rights and enjoy the liberty that property affords. With the rise of the regulatory state during the Progressive Era, however, those rights were increasingly compromised, especially after the Supreme Court upheld restrictive zoning in 1926. That decision opened the door to a host of “permitting” regimes—federal, state, and local—the effect of which has been to tell owners that they can use their property only after they have been authorized to do so by government. That placed immense and often arbitrary power in the hands of government, leaving owners to face a long and expensive series of procedural and substantive hurdles before they could enjoy their property rights. Although the Court has checked some of those restrictions in recent years, owners still bear the brunt of the burden of justifying their rights.

To try to address those problems, at least 23 states have enacted laws to protect private property rights. While most require government agencies simply to “assess” whether their actions might impinge on property rights, a few provide for compensation to owners. At the federal level, Congress has considered three forms of legislation: measures that would require such assessments; measures that would provide statutory compensation for certain federal agency actions; and measures that would remove procedural roadblocks that frustrate efforts by owners to challenge federal, state, and local regulations of property. To date, however, none of those federal efforts has succeeded.

The property rights movement needs to continue to build on its successes. To be effective, however, it must adopt a principled approach. It must reunite America with its common law and constitutional heritage, which affirms that individuals have rights in their property and property in their rights. Finally, it must recognize that the ultimate protection for private property will be found in reducing government to its legitimate functions.

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