Takings

The term "takings" refers to the practice of taking, or otherwise restricting the use of, private property through the governmental power of eminent domain, environmental regulation, or other restrictions. The power of eminent domain—and the property owner's right to compensation—is stated in the Bill of Rights (Fifth Amendment to the U.S. Constitution): "nor shall private property be taken for public use, without just compensation." Likewise, the Fourteenth Amendment stipulates that no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Critics of environmental regulation contend that government cannot constitutionally interfere with a property owner's freedom to do as he or she wishes with his or her own property without compensating the owner. For example, a farmer who wishes to extend or improve his land by draining a swamp or other wetland cannot be forbidden to do so without adequate compensation. A rancher who is forbidden by law to shoot or trap wolves that threaten his cattle can claim compensation for livestock losses due to wolf predation. To "take" or otherwise regulate or restrict the use of their property without full and fair compensation would constitute a violation of their constitutionally guaranteed rights under the Fifth and Fourteenth Amendments.

Many environmentalists maintain that the high cost of such compensation would mean the effective end of many environmental regulations regarding wetlands , woodlands, and other habitats on private property. They contend that the Constitution does not construe the concept of "takings" as broadly as their critics do. There have long been restrictions on what one may do to or with his or her property. There are, for example, restrictions on erecting billboards on private property along public highways. Automobile salvage yards can be required to erect walls to shut out the unsightly view. In neither case is the owner to be compensated for loss, cost, or inconvenience. In these instances, the public interest in avoiding eyesores overrides the private interests of the property owners. So too, environmentalists contend, does the public interest in a clean, safe, and sustainable natural environment empower the federal, state, or local government to enact and enforce laws restricting what property owners may do with or to wildlife and the habitat that sustains them.

The legal and political battles over "takings" continues to be waged in the courts of law and public opinion. Some critics of environmental protection (most notably, libertarians associated with the Cato Institute) contend that the Constitution does not go far enough in guaranteeing the protection of private property rights and should therefore be further amended. Some environmentalists claim that the Constitution should, on the contrary, be amended to extend protection to animals, ecosystems, and future generations .

It seems plausible to predict that these battles will be waged well into the twenty-first century.

[Terence Ball ]

RESOURCES

BOOKS

Epstein, R. A. Takings: Private Property and the Power of Eminent Domain. Cambridge, MA: Harvard University Press, 1985.