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Takings Watch Newsletter -
2001 Quote of the Month Archive

December 2001

American landowners at the time of the Constitution are said to have been free to put their land to any noninjurious use, constrained in their choices only by the law of nuisance. * * * [But t]he conventional history of land use law in the founding era is erroneous, and [] the expansive reading of the Takings Clause derived from it, the so-called regulatory takings doctrine, is misconceived. American legislatures extensively regulated land use between the time America won its independence and the adoption of the property-protecting measures of the Constitution and the Bill of Rights. * * * [T]his history is essential if the court intends to interpret the Takings Clause in accordance with its original meaning, or to give its original meaning any weight whatsoever.

John Hart, Land Use Law In The Early Republic And The Original Meaning Of The Takings Clause, 94 Nw. L. Rev. 1099 (2000)

November 2001

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. * * * In fashioning modern takings jurisprudence, the Supreme Court has essentially ignored the original understanding of the Takings Clause.

William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 782, 803 (1995)

October 2001

"[T]houghts of compensation are * * * simply out of place in most instances, if not quite all, of regulatory restrictions of land use. American constitutional democracy's disposition from the beginning has been to treat the bulk of these events as belonging to the normal give and take of a progressive, dynamic, democratic society. Regulation stands, in our public law, as an ordinary part of the back-ground of risk and opportunity, against which we all take our chances in our roles as investors in property."

Frank I. Michelman, The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein, 64 U. Chi. L. Rev. 57, 69 (1997).

September 2001

"[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community."

Mugler v. Kansas, 123 U.S. 623, 665 (1887)

August 2001

"The fact that tangible property is also visible tends to give rigidity to our conception of our rights in it that we do not attach to others less concretely clothed. But the notion that the former are exempt from the legislative modification required from time to time in civilized life is contradicted not only by the doctrine of eminent domain, under which what is taken is paid for, but by that of the police power in its proper sense, under which property rights may be cut down, and to that extent taken, without pay. Under the police power the right to erect buildings in a certain quarter of a city may be limited to from eighty to one hundred feet. Safe pillars may be required in coal mines. Billboards in cities may be regulated. Watersheds in the country may be kept clear. These cases are enough to establish that a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation."

Justice Oliver Wendell Holmes, author of Pennsylvania Coal v. Mahon (1922), in Block v. Hirsh, 256 U.S. 135, 155 (1921) (citations omitted).

July 2001

"As a crass unrepentant capitalist real estate Republican type, I am certainly all for property rights. But who is talking about property responsibilities? This surreal concept that the right to own real estate somehow exempts one from having to balance rights with responsibilities, this Larry Flint attitude of "I can do what the hell I please and the rest of you be damned" is not only alien to 300 years of American political history, antithetical to how the west was developed, and the most blatant renunciation of fiscal responsibility today, but it is the ultimate gimmick to pass on bankrupt cities to our kids 20 years from now. * * * The so-called "property rights" movement is the singularly most misguided, historically inaccurate, fiscally irresponsible political movement of the last half century."

Donovan D. Rypkema, Economic Development Consultant, in a June 13, 2001 Speech on "Property Rights and Public Values" at the National Building Museum, Washington, D.C.

June 2001

“In reaching this conclusion [to uphold a temporary planning moratorium designed to protect Lake Tahoe], we preserve the ability of local governments to do what they have done for many years — to engage in orderly, reasonable land-use planning through a considered and deliberative process. To do otherwise would turn the Takings Clause into a weapon to be used indiscriminately to penalize local communities for attempting to protect the public interest.”

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
216 F.3d 764, 782 (9th Cir. 2000)
CERT. GRANTED (June 29, 2001)

May 2001

“We must not forget that the community also has rights, and that the happiness and well-being of every citizen depends on their faithful preservation.”

Charles River Bridge v. Warren Bridge
United States Supreme Court, 1837

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