Out to change the law of the land - property rights movement - Cover Story

0 Comments | Insight on the News, May 17, 1993 | by Richard Miniter

Rizek's argument is widely repeated in the halls of the General Assembly Supporters offer two counter-arguments: Since winning compensation from the government is an expensive proposition, a little forethought on the state's part could save taxpayers a lot of time and money; and, says one activist, this wouldn't be the first time constitutional rights had to be restored by legislative action.

Fighting for your rights can be expensive. "Not everyone has a million dollars, like David Lucas, to defend their land," says Jo Ann Frobouck, a former editor of the Land Rights Letter. Therefore, she argues, rights that are difficult and costly to defend are not much of a bulwark against uncompensated property seizures.

As for the bill being "entirely superfluous and unnecessary," Reigle argues that "property rights are civil rights." She sets up an explicit comparison. Though guaranteed in the US. Constitution and state constitutions, many Americans could not exercise their civil rights until Congress passed the Civil Rights Act of 1964. "This is the Civil Rights Act of 1993," she says.

When Reigle declares that private property rights are civil rights, she echoes a number of land rights intellectuals. Mark Pollot, in his 1993 book, Grand Theft and Petit Larceny, calls property the "forgotten civil right." Pollot maintains that once government threatens a person's property, all his other civil rights -- freedom of speech, the right to petition and so on -- are also undermined. Pollot wonders who would want to risk all that he owns by speaking up.

Reigle is also drawing on the work of University of Chicago law Professor Richard Epstein, who describes property rights as "a fundamental civil right" in a recent article in the California Western Law Review. Epstein's 1985 book, Takings, touched off an intense debate in legal circles and had great influence on the federal judges appointed by Presidents Reagan and Bush. In fact, Epstein's book forms much of the intellectual foundation for court orders providing property owners with compensation for regulatory takings.

State Sen. Winegrad can hardly believe his ears. Dismissing the civil rights comparison, he says there are already a "panoply of protections in Maryland" for landowners. Besides, he says, the land rights act doesn't "spell out remedies" for a problem that doesn't exist.

Tailoring regulations to avoid unnecessary takings could do more than reduce the financial burden on taxpayers, say supporters. It could also prevent a lot of heartache. Diane McClary's home in Upper Marlboro, Md., was slated to become part of a 30,000-acre acquisition for a park. She didn't find out about the government's plan until she was repeatedly turned down for permits to upgrade her sewage system and finally asked why. She asked for compensation but was told that the state would pay only for her land, not for her house. Without full compensation, she couldn't afford to move. "I couldn't afford a lawyer," she says, "so I took my lunch hour, my sick days, for 10 years" to fight to keep her property If the attorney general had looked into the matter, she says, maybe she and 50 other property owners wouldn't have gone through "10 years of hell."