Property Matters: How Property Rights Are Under Assault - And Why You Should Care. - book reviews

Reason, May, 1997 by Rick Henderson

Over the past couple of years, supporters of limited government and individual rights have been puzzled and disappointed by the surprising speed with which the political momentum of the property rights movement has vanished. Beginning with the publication of Richard Epstein's Takings in 1985, the intellectual and legal communities started re-evaluating the role of the regulatory state in the American constitutional system, especially as regulations affected landowners. Epstein's argument - that regulators who denied property owners the use of their land were "taking" it, and that owners were therefore owed compensation, as in cases where the government explicitly exercised the power of eminent domain - caused state and federal courts to begin placing limits on bureaucrats and legislators. In the most noteworthy cases - Nollan v. California Coastal Commission, Lucas v. South Carolina, and Dolan v. Tigard - the U.S. Supreme Court somewhat haltingly admitted that, yes, the right to own and use property may be constitutionally protected. At the same time, grassroots property rights groups began to spring up, demanding legislative relief from the actions of overreaching elected officials and bureaucrats.

The 103rd Congress, under Democratic control, came close to enacting limited reforms that would have provided compensation for landowners when some of these "regulatory" takings occurred. And even though a stand-alone compensation bill didn't pass, that Congress was able to stop the creation of the National Biological Service, a new federal agency that would have given government employees and "volunteers" from environmental groups broad powers to trespass. As these persons attempted to inventory all the plants and animals in the territorial United States, the NBS would have let them enter private property without the consent of its owners. After the election of a Republican majority in 1994, as part of the Contract with America the House of Representatives passed a takings compensation bill by an astounding 277-141 margin.

Yet before the Senate could bring a similar takings bill to a vote, the entire Republican "revolution" fizzled. As a smaller, chastened Republican majority takes charge of the 105th Congress, takings compensation bills have disappeared from the legislative agenda. What halted the property rights juggernaut?

In part, property rights activists haven't been able to build political coalitions large enough to counteract the scare tactics environmentalists so effectively use. (See "Property Frights," May 1996.) And the property rights movement has lacked systematic, accessible defenses of its position a lay reader could appreciate. Epstein's book is important, but it is heavy reading. Meanwhile, farmers, ranchers, real-estate developers, and residential landowners can cite examples of outrageous actions by regulators (and, in some cases, by courts). But these anecdotes have for the most part been published in internal newsletters, by vanity presses (sometimes featuring dubious scholarship or conspiracy theories that would cause believers in alien abductions to shake their heads), or in such ideologically sympathetic publications as The Wall Street Journal editorial page, National Review, and REASON. Professionally written and edited book-length treatments of the contemporary property rights controversy - volumes that lay readers can find in better bookstores alongside other mass-market nonfiction works about current issues - haven't existed. Until now.

While intended for slightly different audiences, Property Matters, by Washington, D.C., attorney James DeLong, and This Land Is Our Land, by Rep. Richard Pombo (R-Calif.) and veteran conservative writer Joseph Farah, are accessible, useful primers for readers who want to know why a grassroots property rights movement has emerged and why it has assumed a warlike footing.

Pombo, a cattle rancher from the Central Valley of California, has been a lightning rod on environmental issues since he was first elected in 1992. He has sponsored revisions of the Endangered Species Act that would allow property owners to receive compensation if the discovery of threatened or endangered species on private land caused the property value to fall. Newt Gingrich also chose Pombo as the co-chairman of the House Environmental Task Force, a group of Republican legislators that vets all environmental bills before they come to the floor for a vote. (See "Natural Lite," October 1996.)

Pombo targets his book at a conservative audience, citing a biblical defense of property rights, reminding readers that the Founders explicitly protected property in the Constitution, and offering occasional (if somewhat superficial) attacks on central planning. He describes how wetlands have been transformed in the public mind and the public law from swamps that breed disease-bearing critters to altars at the environmental church. And he explores the growing "eco-federal" coalition of environmental advocacy groups, government regulatory agencies, and congressional appropriators.