“. . . this land is your land, this land is my land . . .”

Here’s another gem from my college days.

music notes

 “. . . this land is your land, this land is my land . . .”

LaTasha T. Johnson

Political Science 460 Honors

Professor Waltenburg

“ . . . the reason why men enter into political society is the preservation of their property.” –John Locke

“. . . nor shall private property be taken for public use without just compensation.” –takings clause

“. . . the rights of personal liberty and private property should be sacred.” –Justice Story in Wilkinson v. Leland, 2 Pet. 627, U.S., 1829

            Relatively recently I discovered that my family has land which has been in our possession for a little over a century.  This land is prime timberland, which at the moment, has no trees.  While this property will most likely never fall into my sole possession, I find myself wondering about the things I would do if it did.  I have entertained numerous thoughts and ideas on the matter.  I could replant the indigenous trees.  I could set up a woodland resort.  I could build a nice mansion.  I could farm it.  The choices are limitless.  After all, this is America; this is the place where anything goes.  I could do whatever I wanted with my land and not have to worry about incoming highways, railroads, neighbors, the environment or anything else.  I would fight all the way to the Supreme Court, if necessary.  After all, it would be my land.  Am I right?

Well, I was not at all sure if my assumptions were correct; so, I became interested in the Fifth Amendment takings clause, and in property rights.  [For this particular anecdotal essay, we must assume that since the takings clause disallows taking of property without just compensation, that just compensation is not equivalent to a loss.  Legal ownership is sometimes retained by the property owner even when he or she has been compensated through the courts. (Emerson, 1997)]  Would my property be mine to do with as I please?  In reality, I was not sure about that, but in my fantastic day dreams, I had free reign.  Once I stopped fantasizing about what I could do with my property, I wanted to explore this issue.  I was pretty sure that in cases of businesses against the government the government would win.  And since America is so individualistic, I thought that individual property owners stood a pretty good chance against the government and big business.  My hypothesis is that the Supreme Court will be more likely to hand down conservative decisions in favor of big business and the government, and that I would probably lose my land in the battle.

My first approach was to get a feel for the general ideas and opinions about property rights and the takings clause.  There is a general assumption that when the government physically takes property, the property owner is to be compensated.  According to Burrows (1991), the government has control over the form of compensation.  He offers a rather complex mathematical formula to calculate the exact value of the compensation.  He states that compensation has to satisfy three objectives.  The first is to protect the property owner.  [He uses the term “asset loser”.]  The second objective is to provide incentives for the government to include cost-benefit evaluations.  The final objective for compensation is to limit the incentives for property owners to become involved in excessive investments.  Burrows eased my mind about compensation, but he did not address what constitutes a taking or for what exactly I could get compensated.  For a response to these issues, I had to look elsewhere.  I did not have to look far.

Richard Epstein, a law professor at the University of Chicago, argues that a takings is any government action that deprives without compensation.  This definition is overly broad (progressive taxation is included), but Epstein (1985) does raise interesting arguments.  For him, the definition of property includes possession, utilization, and disposition of property rights, and any government action which hinders these elements is a taking.  Epstein argues that the Courts have betrayed property rights and the Constitution. (Miller, 1986)  He believes “the purpose of the law is to preserve liberty and property”. (Greve, 1986)  Another interesting argument of Epstein’s is that business corporations also deserve compensation for government regulations, while arguing that the poor and disabled should be denied public aid. (Rabkin, 1986)

While these arguments were interesting, my focus was on Epstein’s handling of property rights in terms of the takings clause.  Epstein uses the takings clause as the balance between public law, which concerns the relationship between the citizen and the state and private law, which concerns the relationship between individuals and private rights and responsibilities. (Barnett, 1987)  Epstein’s analysis of the takings clause includes five main points.  The first is that, based on the theories of John Locke which are incorporated into the Constitution, the government is limited.  Secondly, the takings clause is the basis for economic activism.  Thirdly, it is a merger of legal reasoning with economics-and-law methodology.  His fourth point in his analysis is that a re-evaluation of police power is necessary.  Epstein’s last point is that zoning and similar regulations are compensable, even though the Court has ruled otherwise. (Adamany, 1987)  Epstein is an extreme advocate of property rights.  While the arguments and opinions put forth by Epstein were helpful in understanding possible interpretations and applications of the takings clause, he still did not provide the answers I needed.  So, I searched for more theories concerning property rights and the takings clause.  I found another strong advocate of property rights.       Ellen Frankel Paul (1987) states that according to Thomas Jefferson, John Locke, and Justice Story, it is perilous to separate property rights from civil rights.  While this discussion was interesting, it did not necessarily pertain to my search.  Another of Paul’s focuses, however, was of particular significance to me.  Paul also points out that the Constitution does not give any level of government the right to take or regulate property but it does limit those actions. (Smith, 1988)  She argues that property rights should be defended from a natural rights perspective.  She focuses her argument on eminent domain and police power.  Eminent domain is used to advance state economic and political interests, such as takings for a highway.  Police power is used to govern land for environmental purposes such as public health and safety.  Eminent domain constitutes compensation; police power does not, even if your house was torn down in order to stop a fire.  Hopefully, your insurance will cover such a situation.  Many property owners are not aware of distinctions between police power and eminent domain.  Today, this distinction is sometimes blurred.  In some cases, it may be difficult to determine if property loss has occurred as an issue of public health and safety or as an economic or political advancement of the government.  Paul argues that police power and eminent domain should both be minimized. (Sanders, 1988)  She also argues that government regulation of property will eventually become a tool for special interests. (Nieman, 1988)  This first approach clarified definitions of police power and eminent domain.  But at this point, I still had no way of knowing if I had total control over my property or if a court battle to the farthest extent, to the Supreme Court, would be in my favor.

My second approach was to find out how others had fared in similar situations.  I first began by randomly looking at property rights cases to see if I stood a chance of keeping and having free reign over my property.  In Agins v Tiburon (447 U.S. 255, 1980), the town of Tiburon, Oregon had a zone which allowed only for one-family dwellings and open space uses.  The Court ruled that the zoning ordinance did not constitute a takings.  Knowledge of this case caused nightmares of my property being zoned out of existence or into a permanent Disney-like community.  Zoning was an issue to be wary of; on the other hand, government regulations did not seem so fearful.  The Supreme Court has agreed that a taking without just compensation can result because of regulation. (Pennsylvania Coal v Mahon, 260 U.S., 1922)  These are considered regulatory takings.   The Court has ruled that these takings are compensable, even if the regulations are no longer in place, because of temporary losses or deprivation of full use of property.  The owner’s loss is the measuring stick. (First English Evangelical Lutheran Church of Glendale v County of Los Angeles, California, 482 U.S., 304, 107 S. CT. 2378, 1987) In the case of Loretto v Teleprompter Manhattan CATV Corp, (485 U.S. 419, 1982), all landlords had been required to allow the installation of CATV cables.  The Court decided that physical invasion of property through regulation is considered a taking regardless of the size of the invasion. Regulations limiting economic viability of property is also a taking. (Lucas v South Carolina Coastal Council, 112 S. CT. 2886, 1992).  (Emerson, 1997)

Takings occur in all sorts of fashions, but mainly when circumstances, such as policy and regulations, change and when circumstances, such as changes in flood plains, occur.  In Pumpelly v Green Bay Co. (80 U.S. 166, 1871), the property owner was entitled compensation when his property was flooded after a government-sanctioned construction of a dam caused a rise in the water level of a lake.  Concerning regulation changes, there are two sides of the coin.  On one side of the coin are pro-government types who believe that the government is nearly always right.  On the other side of the coin, are Epstein-types who believe that government regulations concerning property rights should be abolished.   The Court has made it clear that in evaluations of takings the overall property must be taken into account. (Penn Central Transportation Company v New York City, 1978 and Keystone Bituminous Coal Association v DeBenedictis)  In addition to this, the Court gave specific guidelines for the takings clause.  These guidelines include the nature of the governmental action, the economic impact on the land owner, and investment expectations. (Strong et al., 1996)

Takings for the benefit of the public has been incorporated into the takings clause by the Court.  This type of takings is known as eminent domain.  In New York Housing Authority v Muller, urban renewal was determined to be for the good of the public.  The standard of public benefit was upheld in Berman v Parker (348 U.S. 26, 1954).  In this case the District of Columbia took a large part of southwest Washington’s land for urban redevelopment.  Berman’s property was turned over to a private redevelopment corporation to be used for privately owned housing units and commercial uses. (Plater, 1989)  Poletown Neighborhood Council v City of Detroit (304 N. W. 2d 455, Mich., 1981) expanded the idea of public benefit.  In this case, General Motors was the benefactor.  In order to deal with economic problems, GM and Detroit looked for an acceptable plant site.  This site just happened to be in the Poletown Neighborhood.  The entire Poletown neighborhood was condemned and sold to GM to build a factory.  Thus, economic development had now been incorporated into the public benefit idea.  In the First English Evangelical Lutheran Church of Glendale v County of Los Angeles decision, the Court ruled that property owners have a right to compensation under the takings clause when they were deprived full use of their land.  The determining factor is the measure of the economic loss to the owner.  (Wilder, 1989)  Some think that property owners are taking property rights and compensation under the takings clause too far.  Meadows (1995) argues that there has been a move toward the interests of the individual good versus the public good.  She cites this particular legal interpretation of the takings clause as beginning in 1887 with Mugler v Kansas.  An emigrant brewer, Mr. Mugler, felt that the prohibition laws of Kansas constituted a takings.  Mr. Mugler lost his case.  Before this case, compensation was given if land was condemned or seized to build railroads or highways.

In Nollan v California Coastal Commission, 1987, the Court had not been specific enough about the correlation between specific land use and dedication requirements imposed by regulations and the potential impacts of the proposed developments or, in other words, between the public benefit of the regulation and the requirements of restrictions placed on property. So, in Dolan v Trigard, 1994, the court ruled that a property owners’ rights had been violated when the town of Trigard, Oregon put stipulations upon her proposed redevelopment.    In Lucas v South Carolina Coastal Commission, the property owner’s beachfront property was made useless by regulations of South Carolina’s Beachfront Management Act which forbid development which would lead to beach erosion.  David Lucas wanted to build two beach houses.  The Court ruled that the state failed to show Mr. Lucas’ property developments constituted a nuisance.  It also ruled that he was to be compensated by the state for building delays.  Mr. Lucas was awarded $1.2 million dollars.  He had paid a little under one million dollars for the land. (Crowell, 1995)  In this case, regulations denying economic viability were determined to be a takings.

So far, I had learned that zoning is not considered to be a compensatory taking.  Regulations, on the other hand, are considered compensatory.  Regulatory takings are compensatory when they cause a temporary loss or a deprivation in property utilization.  Physical invasion of property is definitely compensatory, no matter how small.  Denials of economic viability are also compensatory.  Takings which occur for the public benefit or eminent domain cases are almost always compensatory.  The effect on the overall property and the loss to the owner is essential to evaluating the extent of the takings, and therefore, the form of compensation.  Police power, as with zoning, is not compensatory.  So, at this point it seemed that the only things I had to worry about were zoning and police power.  However, I found one more thing about which to be concerned .

Criminals often lose their property and the property of others.  As long as I was not a criminal, I would not have to worry about losing my property.  However, I discovered that if property is “ill-gotten” it can be taken away.  In 1996, the Supreme Court ruled that it is not double jeopardy to prosecute someone criminally and then to use civil forfeiture laws to take property. (United States v Ursery).  This doctrine was even upheld in a case where property was owned jointly. In Bennis v Michigan, the Michigan court ordered a forfeiture of an automobile which Mrs. Bennis’ husband had used to engage in sexual activity with a prostitute.  The innocence of the other owner is not a substantial defense and so far has been rejected.  (Schroeder, 1996)  In the case of Calero-Toledo v Pearson Yacht Leasing Co., the Court upheld the forfeiture of a rental yacht without regard to the fact that the yacht rental company was not involved in the criminal activities of the people who had rented the yacht.  (Dripps, 1996)  I also needed to make provisions to ensure that my property would not be used for illegal purposes.

As in the case with my first approach, my second approach was not very scientific; so, I used a more quantitative analysis of the direction of Supreme Court decisions.  This was done by using Spaeth’s United States Supreme Court Judicial Database, 1953-1995 terms.  This method was much more effective in addressing my hypothesis.  The purpose of my analysis is to show whether or not property owners should worry about losing their property and to what extent they can have free reign over their property.  This study adds an anecdotal, less serious research to the vast amounts of writings on the topic of property rights.  I generally found that the Supreme Court does vote conservatively when it comes to property.  The significance of this finding to my hypothesis is that while a conservative vote is usually in favor of  big business and government, in the context of the takings clause, it is in favor of the property owner.  So, although I may not have free reign over my property or be allowed to sell it, it will remain in my possession.

The first approach gave a general idea about the opinions concerning property rights and the takings clause.  While some argue that the courts are becoming increasingly conservative and preserving property rights for the owner, others argue (without valid proof) that the courts have failed to protect the basic property rights of the owner.  The second approach identified specific, pertinent court cases.  The final approach is much more scientific.  The hypothesis is that the Supreme Court will be more likely to hand down conservative decisions in favor of big business and the government, and that I would probably lose my land in the battle.  In using the Spaeth database, the dependent variable was property.  I was interested in seeing the direction of decisions of cases depending on whether or not the cases were non-property cases, property cases in general, or takings clause cases specifically.  [See Table 1]  Non-property cases were more liberal than property cases.  Takings clause cases were significantly more conservative.  In cases involving economic activity, the courts are more against business and against environmental protection.  [See Table 2]  However, the number of zoning cases is too small to be an indicator of direction in zoning.  In cases involving federalism, the government came out on top except when the cases involved pollution, air, or water.  [See Table 3]  However, the number of these cases is relatively small.  My hypothesis was proven correct except that I would not suffer a loss of property.

In conclusion, I generally found that the Supreme Court does vote conservatively when it comes to property.  So, although I may not have free reign over my property or be allowed to sell it, it will remain in my possession.  To answer the question posed earlier, there will be no loss of property in the battle; it will remain mine but not to do with as I please.  Property owners do not have to worry about losing their land, but they should be concerned with limitations of their free reign.  I did not look for factors attempting to explain the relationship of conservative-ness and property rights or for factors explaining what forces account for the direction of the judicial decisions.  This essay was more of an anecdotal account of property rights than a statistical analysis applied in explaining the variables involved in the political direction of a judicial decision.



Adamany, David. Takings:  Private Property and the Power of Eminent Domain. (BOOK             REVIEW), Political Science Quarterly. Vol. 102, Fall 1987, p. 528

Barnett, Randy E. Takings:  Private Property and the Power of Eminent Domain. (BOOK            REVIEW), Ethics. Vol. 97 April 1987, pp. 669-672

Burrows, Paul. “Compensation for Compulsory Acquisition,” Land Economics. vol. 67     February 1991, pp. 49-63

Crowell, Anthony W. “A Warning to Local Governments on the Take:  Property Rights    Advocates Are Standing Their Ground,” Public Management. Vol. 77, April 1995,             pp. 4-8

Dripps, Donald A. “Innocence Is No Defense,” Trial. Vol. 32 June 1996, pp. 67-69

Emerson, Kirk and Charles R. Wise. “Statutory Approaches to Regulatory Takings:  State             Property Rights, Legislation Issues, and Implications for Public Administration,”      Public Administration Review. Vol. 57, September/October 1997, pp. 411-422

Epstein, Richard A. Bargaining with the State.  New Jersey:  Princeton University Press,   1993

—–. Takings:  Private Property and the Power of Eminent Domain. Massachusetts:           Harvard University Press, 1985

Greve, Michael S. “Taking the Constitution Seriously,” The Public Interest. No. 85, Fall    1986, pp. 127-135

Hippler, Thomas A. “Reexamining 100 Years of Supreme Court Regulatory Taking           Doctrine:  The Principles of ‘Noxious Use,’ ‘Average Reciprocity of Advantage,’ and ‘Bundle of Rights’ from Mugler to Keystone Bituminous Coal,” Boston   College Environmental Affairs Law Review. Vol. 14, Summer 1987, pp. 653-727

“Is Taking Stealing?” The Economist. Vol. 326, 6 March 1993, p. 24

Meadows, Donella. “Taking the Low Road: ‘Property Rights’ Hustlers Make a Mockery   of Community,” Amicus Journal. Vol. 17, Summer 1995, pp. 12-13

Miller, Nathan. Takings:  Private Property and the Power of Eminent Domain. (BOOK     REVIEW), Journal of Economic History. Vol. 46, December 1986, pp. 1063-1064

Nieman, Max. Property Rights and Eminent Domain. (BOOK REVIEW), American         Political Science Review. Vol. 82, June 1988, pp. 619-621

Paul, Ellen Frankel. Property Rights and Eminent Domain. New Jersey:  Transaction         Books, 1987

Plater, Zygmunt J. B. and William Lund Norine. “Through the Looking Glass of Eminent             Domain:  Exploring the ‘Arbitrary and Capricious’ Test and Substantive         Rationality Review of Governmental Decisions,” Boston College Environmental    Affairs Law Review. Vol. 16, Summer 1989, pp. 661-752

“Property Rights:  Find Them on Beaches,” The Economist. Vol. 322, 29 February 1992

“Protecting Private Property Rights from Regulatory Takings,” Hearing before the             Committee on Judiciary, House of Representatives, 104th Congress, 1st Session,   10 February 1995, Serial No. 42

Rabkin, Jeremy. Takings:  Private Property and the Power of Eminent Domain. (BOOK    REVIEW), Policy Review. No. 37, Summer 86, pp. 78-82

Sanders, Joseph. Property Rights and Eminent Domain. (BOOK REVIEW), Social           Science Quarterly. Vol. 69, March 1988, pp. 228-229

Schroeder, William R. “Civil Forfeiture:  Recent Supreme Court Cases,” FBI Law             Enforcement Bulletin. Vol. 65 October 1996, pp. 28-32

Smith, Wallace, F. Property Rights and Eminent Domain. (BOOK REVIEW), The Annals            of the American Academy of Political and Social Science. Vol. 498, July 1988, pp.          166-167

Strong, Ann Louise, et al. “Property Rights and Takings,” Journal of the American            Planning Association. Vol. 62, Winter 1996, pp. 5-16

“Trends in Federal Landownership and Management,”  Hearing before the Committee on             Resources, House of Representatives, 104th Congress, 1st Session, 2 March 1995,       Serial No. 104-3

West, Patrick C. and Steven R. Brechin, eds. Resident Peoples and National Parks:  Social           Dilemmas and Strategies in International Conservation.  Arizona:  The University       of Arizona Press, 1991

Wilder, Margaret G. and Joyce E. Stigter. “Rethinking the Role of Judicial Scrutiny in      Eminent Domain,” Journal of the American Planning Association. Vol. 55, Winter        1989, pp. 57-65

Yandle, Bruce. Land Rights:  The 1990s’ Property Rights Rebellion.  Maryland:  Rowman            and Littlefield Publishers, Inc., 1995


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