Bill of Rights For Real Life: Private Property

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0:22 while most people think of property as land or a house property really means much more including material goods creative works and even ideas many of our founders believe property rights in one’s body in person to be the root of all rights rights government is established to protect in our Constitution the most important

0:43 protection of property occurs in the Fifth Amendment’s guarantees of due process and just compensation for private property that is taken for public use I think the basic argument that the framers had to some extent was that if you remove the requirements of compensation then in effect widespread confiscation could take place people

1:05 might have homes it might have factories and these things could be taken over without a dimes worth of compensation simply upon a vote by the majority of the population that it would rather own these things when you require compensation it slows down the level of government activity and it places upon government the duty to show to its electorate that the property that it

1:26 could take over in public hands is going to be worth more than the money it has to pay for the due process and takings clauses raise an important constitutional question what happens when public policy and private property rights clash under due process government cannot arbitrarily deprive citizens of their life liberty or

1:46 property and under the takings clause government must pay when it does take private property for public use the public pays for the benefit it receives under the Fifth Amendment if the people want to take somebody’s property it must be for a public use and they must provide just compensation this is prevent majorities from ganging

2:07 up in simply taking property from people and making them individually bear public benefits historically most takings of private property for public use happen during the expansion of railroads and interstate highways to secure the necessary structures of connected land the federal government condemned and then seized large strips of residential

2:30 and farming property today the government rarely confiscates private property outright it’s become common however for cities and states to limit or regulate what individuals can do with their property sometimes such regulation becomes so comprehensive that it qualifies as a taking under the Fifth Amendment often

2:50 referred to as a regulatory taking a regulatory taking is a situation where the government says to a landowner we are going to leave you in possession of your property but we’re going to impose restrictions upon you in the way in which that property can be used so before the restrictions were imposed you could build these an apartment house or

3:10 a single-family home on your property after the restrictions are imposed they say only single-family homes the question is whether or not this use restrictions which precludes apartment houses is a regulatory take and the question is one which simply does not admit under current law of any coherent answer a prominent case involving

3:31 regulatory takings occurred in Lucas versus South Carolina Coastal Commission in 1986 David Lucas purchased beachfront property on the Isle of Palms a barrier island in South Carolina with the hope of building two single-family homes but two years later South Carolina passed a law aimed at protecting the barrier islands from erosion by prohibiting the

3:54 construction of new homes Lucas argued that even if the law was constitutional the state’s action rendered his land economically valueless and he sued for compensation when a South Carolina Court awarded Lucas more than 1.2 million dollars the state appealed and in 1992 the case found its way to the Supreme Court and the Supreme

4:16 Court in that extreme case but in no others said that the compensation was in fact required and indeed what it did do is required mr. Lucas to give a deed to the state in exchange for the compensation it received the state now had this piece of land which in its hands was also worthless and it had to pay five hundred thousand dollars how

4:36 did it raise the money answer is that we sold the land in a private auction to somebody else and gave them the right to build so I think what happened is by forcing to take the land and to pay for it all of a sudden that we see that there was a certain amount of posturing in the case that is that people were prepared to say abstractly that preventing the construction was really very very

4:57 important to the public at large but the moment they were required to compensate for the private loss they simply abandon their plans and well they should have Lucas is an important victory for private property holders in that it places some limits on what the government can do nonetheless it leaves unresolved how far the legislature can

5:18 go and taking somebody’s property two years later the court returned to the issue of property rights in Dolan versus city of Tiger storeowner Florence Dolan asked the city of Tigard Oregon for a permit to expand her hardware store and pay the parking lot where her customers heart the city granted the permit but with the condition that Dolan give up

5:40 parts of her property for a public bicycle path and a rainwater drainage area connecting to a local stream because the city’s demands bore no relationship to the expansion of her hardware store Dolan argued that the city’s conditions violated the Fifth Amendment’s takings clause and she took her case all the way to the Supreme

6:00 Court the regulation in Dolan is really very troubling what the city tried to do there was to attach seemingly unrelated conditions to the giving permission to this woman to expand their hardware store and to try to make a living the Supreme Court said that those conditions are okay if the conditions are

6:23 sufficiently related to what the land holder wants to do but if not then it can rise to the level of a takings so the actual application of the unconstitutional conditions doctrine is very very difficult to work out it’s not clear in practice whether it’s a good or a bad thing for property owners the restriction on the Lucas case which says look you cannot wipe out the entire

6:44 viable use of land is a much more unproblematic decision because it cuts in only one direction and tends to restrict upland pallette Dolan is therefore a very hard doctrine in a very hard case Lucas I think has different problems but at least it a step in the right direction despite recent decision supporting property rights the court has upheld laws

7:05 restricting the uses of historic buildings and landmarks even though privately owned also losses resulting from the exercise of government’s power to protect health and safety such as damage caused to buildings by police quelling a riot or the profits loss in the closure of a leaking landfill have not been ruled takings which means the government did

7:25 not have to compensate the owners for limiting the use of their property in general the courts have been reluctant to find regulatory takings giving local government great latitude to regulate the use of private property without having to pay for us while property rights cases have not enjoyed the same publicity as cases of free expression or

7:46 religion they involve the same key question what happens when individual rights stand in the way of government efforts to promote the public good the answer to that question affects the amount of Liberty all Americans enjoy I’m Tim O’Brien