…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