Property Rights vs. Government Regulation: More at Stake Than Just Your Backyard

Nancie Marzulla | 1999/11/19

Any discussion about property rights should start by going back to the Constitution. James Madison, who drafted our Bill of Rights, at the insistence of the states, demanded that there be some protections for individual rights and states' rights. Thus, in the Bill of Rights you find protections for private property rights in both the Fourth and the Fifth Amendments. Thomas Jefferson identified property rights in the Declaration of Independence when he asserted that the proper role of government is to protect its citizens' life, liberty, and pursuit of happiness. Jefferson's writings make clear that by “pursuit of happiness” he didn't mean something like the 1970's notion of “anything goes,” or “if it feels good, do it,” or the 1990's fixation with instant gratification. Rather, he meant something more along the lines of the right to enjoy the fruits of one's labor, or what we think of today and describe simply as private property rights. In fact, Jefferson's original draft borrowed John Locke's formulation: life, liberty, and property.

Why did our Founding Fathers place so much emphasis on protecting private property rights? Because they understood that there are essentially two ways that an oppressor or a dictator can control the people. The first is through physical oppression. The other is through controlling private property. We can see very easily how liberty is destroyed by looking no farther than the former Soviet Union, whose government controlled the citizens and allocated everything--apartments, cars, careers, educational opportunities--everything.

Our Constitution, on the other hand, by guaranteeing the right to own and use private property, secures for us our homes, our jobs, our educational opportunities, and our right to enjoy the fruit of our labor. In short, our property rights are secured against government destruction.

The current controversy over this important constitutional right arose directly out of the Fifth Amendment's requirement contained in the just compensation clause, which states, “nor shall private property be taken for public use without payment of just compensation.” That's the crux of what this modern controversy over property rights centers around.

And this is because, in its most simple terms, the government wants more property, more land, more power, than it can pay for. Its appetite for more--more land, more forms, different kinds of property--is unlimited. The only thing standing in the government's way is this “loathsome” requirement that it has to pay for what it takes.

I would like to focus our discussion of property rights on the woman's perspective, which may really be what counts the most; because what women believe about property rights may be pivotal concerning this key constitutional right in the coming years. I'll explain in a moment.

Let me say now that despite the fact that the Constitution placed enormous emphasis on protecting private property rights, there is not a single law on the books implementing this constitutional right. Think about the other rights mentioned in the Bill of Rights; many of these provisions have elaborate implementation programs in various statutes and regulatory programs. Take the Equal Protection Clause: you need think no further than Title VII, Title VIII, fair employment, fair housing programs, the Voting Right Acts, and so forth, to realize to what lengths Congress has gone to implement those protections over due process, criminal rights, excessive fines, and the rest. In many instances, Congress has stepped in and demanded that government exercise its powers in such a way as to conform with what the Constitution requires.

But with respect to the just compensation clause, Congress has done nothing. On the contrary, we have a veritable explosion of laws that adversely affect private property rights. For example, the Clean Air Act, the Surface Mining Control and Reclamation Act, the Coastal Zone Management Act, the Super Fund, FIFRA, the Endangered Species Act, the Federal Wetlands Regulatory Program--all of these federal laws and regulatory regimes have had enormous negative impacts on private property rights. There are hundreds of thousands of pages of rules and regulations of all sorts, of all varieties, on all topics, that adversely affect private property rights. But not a single page is devoted to protecting private property rights.

In fact, no activity, no human endeavor is more heavily regulated than the use of private property in our society. Added to the federal level, there are the various state regulatory regimes, not to mention local government land use and zoning controls. In short, the unconstitutional taking of private property is an epidemic in this country.

This wholesale destruction of our liberty can only be stopped if we can come up with leaders who are willing to stand up for the property rights of the people. Agency bureaucrats can be made to obey the Constitution only if Congress requires them to do so; for example, by conducting meaningful oversight hearings, changing environmental laws, and enacting strong property rights legislation. There have in fact been a number of really excellent property rights proposals introduced in Congress since 1990. What is missing is not the proposals, but the political will to enact them.

We all know that political leaders may not read the Constitution, but they always read the polls. And what the polls tell us today is that the female voter--I'm finally back to women!--between the ages of twenty-one and fifty are the most influential and sought-after segment of the voting population. Indeed, how you vote in the coming years will determine every election from the presidency on down. Therefore, what you have to say about this issue will really count. That is, the political leaders you elect, and their stance on property rights, will be critical in deciding whether the government will conduct its business the constitutional way or continue down the path from freedom to socialism.

The home and the family are top priorities for women, as are educational and career opportunities. In other words, what women want reads like something out of the Federalist Papers. They want the pursuit of happiness as understood by Thomas Jefferson, James Madison, and our Founding Fathers. And the only way women are going to be able to achieve these goals is, again, through the protection of private property rights.

It may be dead white men who wrote the Constitution, but the fight to protect our liberties is being led, believe it or not, by women. For example, Jean Nollan.

The Nollan decision that was rendered by the Supreme Court in 1987 forms part of what we refer to as the 1987 Trilogy. Another dauntless woman, Florence Dolan, took the City of Togard, Oregon, all the way to the Supreme Court because it had grabbed a swathe of her beachfront property, declaring it a public easement, a public pathway, without payment of just compensation. The U.S. Supreme Court struck the taking down as invalid, using the just compensation clause as a sword, which is an astonishing way to view the just compensation clause, because many people see it simply as a money-mandating provision.

Another important case was recently won by Bernadine Suitam. She battled the Tahoe Regional Planning Authority for permission to use her property. In her case, the government opposed even her right to go to court. When she finally got to the Supreme Court, she had to be carried in a wheelchair--she was in a wheelchair and blind by then. But she won her case. She got her day in court, and eventually obtained just compensation for the taking of her property.

In another case, Mary and John McMachin built a vacation home on dry land. The Corps of Engineers, however, said it was wet--but not until after the McMachins had built the house and lived in it for three years. The government wanted them to tear down the house, or move the house--but the McMachins refused. Through litigation, the government was forced to give them an after-the-fact permit.

Jeannie Ebram is another gutsy person, a grandmother with five grandchildren. This picture of the back of her vacation home is important because next to the little cement area you'll see green grass. Today the grass is gone because there was a storm on the coastline of Texas that tore up the grass. Well, guess what Texas law now says? Because there's no vegetation next to the house, the land has become beach land, publicly owned land, and she has to move her house off of state property. In fact, she's going to be fined for having personal property on public property if she doesn't move her house immediately. But this woman is not willing to roll over and play dead. She wants to fight this case. And so we are suing the state of Texas.

Hilda Taylor is another woman whom we are currently involved with. She has Parkinson's disease and needs a home that will accommodate her wheelchair. She currently lives in a two-story house. Her husband, a builder, would like to build her one on a lot they own in Fairfax County, Virginia, but the U.S. Fish and Wildlife service says no because the lot is located adjacent to a bald eagle's nest. The bald eagle has been taken off the Endangered Species Act list, or is supposed to be taken off, as proclaimed by President Clinton, because the bird is no longer in danger. But the Fish and Wildlife Service is telling the court that Mr. Taylor can't build his house because technically the bird is still on the list.

I could go on the rest of the afternoon talking about these women litigants, but I'll end with Kathy Stupak Thrall. This woman is a real property rights warrior. She was a property owner who had a home by a lake in Michigan. Everything was fine. I don't think she ever thought about private property rights. But then the federal government came along and told them that they couldn't use the lake anymore because the lake was adjacent to federal land. And according to the federal government it can control adjacent property because there has to be a buffer around federal land, and if it destroys private rights that exist in the use of the lake, it's just too bad. It's something that the federal government thinks it's entitled to. But Kathy Stupak Thrall thought otherwise, and took the federal government to court. Unfortunately, the Circuit Court of Appeals that heard the case did not agree, but that did not stop Kathy; in fact, I think it just got her started. Because now she's running for public office and trying to get the laws changed to put an end to such thefts of private property. I predict that we're going to be hearing more from Kathy Stupak Thrall.

Let me close by touching on a topic that I have been asked to discuss, which is about success and conservative women in the fields of litigation. To my mind, thinking about success is not a very good way of going about one's life. More helpful and more useful to me is what Mother Teresa said, which is, “We are not called upon to be successful. We are called upon to be faithful.” That is what I would recommend to anyone who was making life choices.

What in life brings the most satisfaction and the most meaning is making decisions and living your life faithful to your duties and responsibilities as a wife, a mother, a friend, a professional, and being faithful to your God. Live your life in such a way and your life will count for something that's bigger than yourself.

Making decisions in order to build your resume or get an award does not bring much personal happiness or satisfaction, and it certainly doesn't make the world a better place to live in. The women I've just mentioned left the comforts of everyday life and took on the really arduous task of suing the government to protect our rights, for something bigger than themselves.

Related Subjects:

Limited Government

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