Property rights vs. human rights

billofrights..nor shall private property be taken for public use without just compensation.–Fifth Amendment

…nor shall any State deprive any person of life, liberty, or property without due process of law…–Fourteenth Amendment

As with the Second Amendment, some would read only part of the text–with the Second Amendment they would ignore the phrase “a well-regulated militia;  with the Fourteenth, they would ignore the phrase “without due process of law.”

Tom Reed’s bill, Defense of Property Act, purporting to make property rights supreme over the public interest is unlikely to become law. But it isn’t the first and won’t likely be the last effort to put property rights ahead of the general welfare.

In 1997, Senator Orin Hatch wrote:

Mr. President, I am pleased today to once again introduce the “Omnibus Property Rights Act.” Many members of the Senate have as a paramount concern the protection of individual rights protected by our Constitution.

One particular right, —the right to own and use private property free from arbitrary governmental action, —is increasingly under attack from the regulatory state. Indeed, despite the constitutional requirement for the protection of property rights, the America of the late twentieth century has witnessed an explosion of federal regulation that has jeopardized the private ownership of property with the consequent loss of individual liberty.

According to the CRS summary, S.605 — “Omnibus Property Rights Act of 1995,” would “with specified measures, to encourage and protect the constitutional and legal rights of private property owners against any Federal agency’s regulatory or administrative action that adversely affects private property.” This bill died in committee.

Senator Hatch concluded:

The government has always been able to prevent “harmful or noxious uses” of property without being obligated to compensate the property owner, as long as the limitations on the use of property “inhere in the title itself.” In other words, the restrictions must be based on “background principles of state property and nuisance law” already extant. The Omnibus Property Rights Act codifies this principle in a nuisance exception to the requirement of the government to pay compensation.

Tom Reed’s bill provides:

No agency, shall take private property in part or in whole except for public purpose and with just compensation to the property owner. A property owner shall receive just compensation if–

(C) such action results in the property owner being deprived, either temporarily or permanently, of all or substantially all economically beneficial or productive use of the property or that part of the property affected by the action without a showing that such deprivation inheres in the title itself;

Thus Reed’s bill seems to go further than Senator Hatch’s proposal in extending property rights. Senator Hatch continues:

Nor does the Omnibus Property Rights Act hinder the government’s ability to protect public health and safety. The Act simply does not obstruct the government from acting to prevent imminent harm to the public safety or health or diminish what would be considered a public nuisance. Again, this is made clear in the provision of the Act that exempts nuisance from compensation. What the Act does is force the federal government to pay compensation to those who are singled out to pay for regulation that benefits the entire public.

In other words, it does not prevent regulation, but fulfills the promise of the Fifth Amendment, which the Supreme Court in Armstrong v. United States, 364 U.S. 40, 49 (1960), opined is “to bar Government from forcing some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole.”

Whatever the merits of Senator Hatch’s bill, fracking might well be considered “harmful and noxious use,” and one might reasonably think property owners are too large a class to be considered “singled out.”

© William Hungerford – January 2015


About whungerford

* Contributor at where we discuss the politics, economics, and events of the New New York 23rd Congressional District (Allegany, Cattaraugus, Chautauqua, Chemung, (Eastern) Ontario, Schuyler, Seneca, Steuben,Tioga, Tompkins, and Yates Counties) Please visit and comment on whatever strikes your fancy.
This entry was posted in Congress, Constituents, Constitution, Environmental, EPA, Hydrofracking/Gas& Oil Industry, Political, Reed's Views and tagged , , , . Bookmark the permalink.

8 Responses to Property rights vs. human rights

  1. Deb Meeker says:

    The NYS law that bans hydraulic fracturing “takes” nothing from the landowner, does not infringe on the landowner’s property ( as for easement, or driveway), and leaves the owner whole as was when the property was purchased.
    So what does Tom Reed think he’s sees that can be used his plan to bilk taxpayers?


  2. Anne says:

    He’s grandstanding, that’s all.

    Liked by 1 person

  3. Barbara Griffin says:

    “A property owner shall receive just compensation if–
    (C) such action results in the property owner being deprived, either temporarily or permanently, of all or substantially all economically beneficial or productive use of the property or that part of the property affected by the action without a showing that such deprivation inheres in the title itself”…suggests that Tom Reed wants the taxpayers to compensate the landowners who cannot lease or sell land to the fracking companies because of the NYS ban. I see it as punishment for all those who would dare stand in the way of the fossil fuel industry, of which Tom is one of their darlings.


  4. Anne says:

    I guess if they want to frack their land, they’re free to sell and relocate to places where fracking is allowed. No one’s stopping them. And seriously, once my land gets poisoned on account of that activity, are they going to compensate me?

    Liked by 1 person

  5. Maureen Harding says:

    It’s a little more complicated than the 5th and 14th. He is pulling a political stunt here. The case law simply doesn’t support his proposal. First, a simple lease with a private company in anticipation of future economic gains doesn’t entitle anyone compensation by the state. That is insane. Lawyers are ridiculing him. He is being intentionally deceitful here or being completely ignorant.


  6. Actually, there is such a thing as a “Regulatory Taking”. But if that was the case here, and it is not, the state would not have banned it. Everything is done the way it is done for a reason. Nothing is done in the state that does not account for all of the multiple scenarios. Reed would not be reacting the way he is if his hands were not so tightly tied…as is the case here. It is his frustration coming out in a fabulously ridiculous way!


  7. BOB McGILL says:

    Would you be saying all that if GOLD were discovered in your neighborhood ? The real question is, ” do the people have a right to know the truth ? ” As with anything else, you people are against, you depend on LIES to accomplish your goals. FRACKING IS SAFE 🙂


  8. Pingback: Will Counties Support Rep. Reed’s “Property Rights Act” ? | New NY 23rd

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