The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 6 No. 1 • February 2003

Another Important Constitutional Right Under Siege—The Fifth Amendment’s “Takings” Clause

Neither “property” nor the value of property is a physical thing. Property is a set of defined options . . . It is that set of options which has economic value . . . It is the options, and not the physical things, which are the “property”—economically as well as legally . . . But because the public tends to think of property as tangible, physical things, this opens the way politically for government confiscation of property by forcibly taking away options while leaving the physical objects untouched.

— Thomas Sowell, economist

The above is simply the finest and most explanatory definition of property and property rights (“options”) that we have seen. It is extremely useful in understanding the basis for “takings” (forcible taking away of options by government), which, under the Fifth Amendment of the U.S. Constitution, requires “just compensation” (“. . . nor shall private property be taken for public use without just compensation”).

The purpose of the “takings” clause is not to prevent government regulation of private property, but to ensure that such regulations are restricted only to important public uses by requiring that the public be willing to pay. What reason is there to restrain your wish list when it is paid for by somebody else? Current regulatory regimes routinely forcibly take away options, and just compensation is rarely provided. This creates what is called a “moral hazard,” because it creates strong political incentives to rip off people who own property, such as turning over the use of private property to certain species of animals by declaring it “critical habitat,” without cost or consequences to anybody but the targeted victims. The “takings” clause says, in effect, if the public is not willing to pay for a proposed public benefit, then there can be no government taking of private property for that proposed public benefit.

Full implementation (or not) of the Fifth Amendment’s “takings” clause (and the survival—or not—of private property in America) is currently the focus of immense amounts of resources and political battles, as well as much private litigation. For further information, including the important new rulings that have arisen in the course of a “takings” case currently before the United States Court of Federal Claims, Hage v. United States, see www.stewardsoftherange.org.

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