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Mr. CANADY. Thank you, Ms. Cline.


Reverend CAMPBELL. My name is Joan Campbell. I serve as the general secretary of the National Council of Churches of Christ in the USA. The National Council is comprised of 32 member churches whose combined membership is 49 million people. We have long been concerned about how to maintain the balance between the private side of our life, including personal choice, property, and voluntary association, and our social responsibility. Finally, it is our caring for one another that concerns us.

More than 30 years ago, the council spoke specifically on how we use property and the wealth that derives from it. Then, and today, the council saw the issue as fundamentally moral. The council advised that the exercise of the traditional right of private property must be conditioned by the rights of all, including the right of future generations to enjoy the resources and fruits of the earth. Legal ownership of resources does not confer unlimited right of use or misuse.

It has always been the religious insight that self-interest, greed and self-aggrandizement need no advocates. They can be counted on to defend themselves. I suspect we will also agree on that religious view of human reality.

It is rather the delicate and precious part of life, the common good, that needs our voice. It is the social compact that is always attacked and threatened by the excessively private. Who shall speak for the whole family and its well-being if other voices are privatized and self-serving?

We have a religious heritage and I have said again and again to those who handle public power, your business under God is primarily the common good, not private consolation. It is clearly the heritage of the Scripture. The kings of old were judged for their exercise of power, the character of their rule, not their private rectitude nor their personal religious piety.

The rights of private property have always been conditioned in the Judeo-Christian tradition by God's insistence on the well-being of all. The law, as described in Deuteronomy, is careful to spell this out. For instance, the obligation to see that the hungry are fed was considered a higher calling than the right to reap all the fruits of your labor, even on your own land. Even oxen were not to be muzzled while they tread grain so that they might also eat.

Our social compact that allowed all to enjoy the fullness of life as God intended has been a key aspect of the Protestant Christian spirit. The reforming spirit led to covenantal visions of commonwealth, a more just social contract and representative government.

The biblical image of the kingdom of God has long been understood to include the economic and political well-being of all. The prophets of the social gospel sought common ground among divided churches for the sake of those who were hungry, thirsty, naked, sick, prisoners or strangers.

Thirty years ago, the churches engaged in an earlier debate over the “takings” provisions of the fifth amendment. At that time, it was a ruse to block racial inclusiveness. Allowing persons of color to live next door, it was argued, would reduce the value of their white neighbor's property and amount to "taking something away. Overlooked was what racism took away from its victims, an issue at the heart of the common good.

As one who participated in the civil rights marches, I am not surprised to see the issue raised again as a way to avoid the claim of the common good. We support the importance of protecting private property from callous and unneeded encroachment by the Government, even as we heard from the witness before. But we call on the Government to enact laws and set policies that are informed as much by the well-being of all as the private protection of anyone's property.

Laws restricting what property owners can do with their property have long been considered both morally good and appropriate social policy. William Penn, the Quaker founder of Pennsylvania, passed laws requiring that 1 acre of forest remain standing for every 5 acres that were cleared.

The new debate about “takings” attempts to impose a radical reinterpretation of the fifth amendment that would curtail government's ability to protect the common good. It would take us back to an age of excessive individualism where the interests of the greedy override the public's well-being.

We see it in public health, civil rights, environmental protection, and safe working conditions. In all these areas, we believe the basic issue is about respect and balance.

While recognizing the legitimate rights of individuals, will we at the same time expect every property owner to respect social covenants? The new battle over “takings” is an old confrontation between those who give primacy to private property in its most narrow sense and many in our society who favor the other, the poor, the abused, those who are passionately, even religiously concerned for the future of God's creation as a home for us all.

The common good also is an old idea with a new urgency. It is an imperative to put the welfare of the whole ahead of our own narrow interests. It is an imperative which we fervently hope will guide our people and our leaders in this new moment.

Thank you for the privilege of testifying.

Mr. CANADY. Thank you very much, Reverend Campbell. Our final witness on this panel is Roger Pilon. STATEMENT OF ROGER PILON, PH.D., J.D., SENIOR FELLOW


Mr. Pilon. Thank you very much, Mr. Chairman. And thank you for the invitation to speak before this committee. I would ask that my prepared statement be pyt in the record.

I want to join Reverend Campbell by saying that the basic issue is indeed respect, but I would add that it is respect for property owners as well. The story that you heard from Ms. Cline, based upon my experience in this area for a number of years, is not an aberration. It has happened over and over across this country that property owners are being harassed by bureaucrats in what can be called nothing less than police-State action to take away their property rights, with threats of the kind she has spoken about. This we see over and over.

What is to be done about it? I want to make basically two points. That we need to think seriously about relimiting government, number one, and number two, we need to revive the fifth amendment's takings clause.

What we are talking about here today is regulatory takings. With the growth of regulation over the course of the 20th century, we have seen every aspect of life regulated, especially in the property rights area. As a result, you can barely turn around without getting official permission to do so.

Let's remember that this is a Constitution of delegated, enumerated, and thus limited powers. I would urge, first of all, that this committee take the lead in issuing a statement from the Congress that, despite the growth of government over the course of the 20th century, the Constitution remains a document of delegated, enumerated, and thus limited powers.

Unfortunately, we have honored that principle, that centerpiece of the Constitution, in the breach and as a result, we have regulation after regulation, many of which are taking what belongs to property owners. And that takes me to my second point with respect to reviving the fifth amendment's takings clause.

We need a clear definition of property," one that is found in every other area of the law except the takings area. Second, we need a clear definition of the nuisance exception, and, finally, we need to pay for public goods.

With respect to a clear definition of “property,” today, unfortunately, in the takings jurisprudence area we have had what the Supreme Court itself has called 70-odd years of ad hoc regulatory takings jurisprudence, which has given as the chaos that we have in this area of the law. “Property needs to be defined to include all the uses that go with it. As Madison put it, “As a man is said to have a right to his property, he may be equally said to have a property in his rights.

All those uses are themselves property. With respect to that "bundle of sticks," take one of those "sticks," one of those uses, and you have taken something that belongs to the owner. You have taken a right of his and you now must pay him for it.

Regrettably, under current law, only if you have a complete wipe out, only if you have near total loss from a regulation, do you get compensation. That is to say, in most cases where regulations take 25 percent, 50 percent, 75 percent, you are out of court.

Now, none of us would have any difficulty in saying that if a thief took some of your property, he had taken your property, and yet if the Government does it, we say that is not a taking. That is the kind of errant nonsense that must be brought to an end by a clear definition of “property,

Secondly, you must create a clear nuisance exception to the compensation requirement. When Professor Byrne said that this is a bill that calls for the Government to pay polluters not to pollute, I can only conclude that he hasn't read the bill. Look at the bill. It makes it clear that you do not get compensated for nuisances. He says the nuisance law is inadequate. Well, let's make it adequate.

The nuisance law exception is meant to capture a whole range of environmental protection. Nobody is to be compensated for not polluting his neighbor's property. That should be clear in this legislation.

Finally, we have to ask who is going to pay for the public goods that we have brought about by regulation? Earlier, Mr. Frank asked the gentleman from DOJ, what will this bill cost? Well, that is up to you, Mr. Frank. It depends on whether you want to go on regulating as you have for your tenure here in this Congress. If

you do, it is going to cost the taxpayer a pretty penny. I submit that after the last election, you are not going to want to do that.

However, it is going to be a payment that is going to be fair because the public that wants such goods is the public that must pay for them. Right now the costs of those goods fall on innocent people like the Ms. Clines of this world. And, again, she is representative of many, many other people in her place. These are the people that we are making pay for the whole costs of our public appetites.

If you don't enforce the takings clause, which gives us the balance that Reverend Campbell called for, if you do not enforce the takings clause, then you have the kind of "off-budget" accounting for these public goods that we have today. And to be sure, no one knows what they cost because those costs fall silently on the Ms. Clines of this world, and they fall in addition on all of us in the form of lost opportunities.

What this bill would do is make us have a public accounting so that we could determine whether this view was worth it, whether this historic site was worth it, and so forth. It may turn out that not every species may be worth saving. Let me repeat that. Not every species may be worth saving-although a species may seem to be worth saving if saving it is 'free,” which is exactly the way it seems today because we, who want that species saved, are not paying for it. It is the Ms. Clines of the world who are being asked to pay for it.

Let me conclude by saying we need this legislation. We need it desperately to stop what is going on in this country. What is going on in this country is described by a single word: “Theft.”

[The prepared statement of Mr. Pilon follows:) PREPARED STATEMENT OF ROGER PILON, PH.D., J.D., SENIOR FELLOW AND DIRECTOR,

CENTER FOR CONSTITUTIONAL STUDIES, Cato INSTITUTE Mr. Chairman, distinguished members of the subcommittees, my name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato's Center for Constitutional Studies.

I want to begin by thanking Congressman Hyde for inviting me to speak before this subcommittee on the subject of Protecting Private Property Rights from Regu. latory Takings. I want also to thank Congressman Canady for calling hearings so early in the term of the 104th Congress on so important and timely a subject.

Uncompensated regulatory takings of private property have become an immense problem across the nation. As federal, state, and local regulations have increased in number and scope, property owners have increasingly found themselves unable to use their property and unable to recover the losses that result.

The problem begins, therefore, with the growth of government regulations that deny owners the legitimate use of their property. It should end with the relief that courts might give in the form of compensation to those owners, as required by the Fifth Amendment's Takings Clause. Unfortunately, the courts have been locked into what the Supreme Court itself has called 70-odd years of ad hoc regulatory takings jurisprudence. As a result, they give relief in only a limited range of cases. That means that property owners, both large and small, bear the full costs of the public goods the regulations bring about, when in all fairness those costs should be borne by the public that orders those goods in the first place.

As the voters made clear last November in race after race, the protection of property rights is a burning issue on which they want action. The time has come for Congress to address this issue, to redress the wrongs that have been imposed on individual owners by Congress itself and by countless state and local officials.

To do that, Congress needs to reexamine the vast regulatory structure it has erected-largely over the course of this century-to determine whether those regulations proceed from genuine constitutional authority and whether they are consistent with the rights of the American people to regulate their own lives. But second, and more immediately, Congress needs also to breathe new life into the Fifth Amend. ment's Takings Clause, making it clear to a Court too encumbered by its past that the clause means precisely what it says when it prohibits government from taking private property for public use without just compensation.

Let me address those two issues, the first briefly, the second in somewhat more detail.

1. RELIMIT GOVERNMENT IN THE CONSTITUTION The federal government, as every student of the Constitution learns, is a government of delegated, enumerated, and thus limited powers. Delegation from the people gives power its legitimacy. Enumeration limits that power. Unfortunately, that doctrine of enumerated powers, which the Framers meant to be the centerpiece of the Constitution, today is honored in the breach. Whereas earlier congresses asked first whether they had constitutional authority to undertake whatever proposal might be before them, and earlier presidents vetoed measures for lack of such authority, the 20th-century concern has been to pursue public ends without even asking whether the Constitution permits those pursuits. And the Court, following Franklin Roosevelt's notorious Court-packing scheme, has largely looked the other way, inventing doctrines about Congress's commerce and spending powers that are no part of the Constitution-indeed, that are in direct contradiction to the very purpose and design of the Constitution. The result has been the regulatory and redistributive juggernaut that has produced the Leviathan we now call government in America.

Because I have addressed this issue in some detail in the Cato Institute's new Handbook for Congress, which was released here in the Capitol and distributed to each member just this week, I will limit myself today to saying simply that if we are to come to grips with the problem of regulatory takings, the first order of business is to start thinking seriously about rolling back many of the regulations that are doing the taking. And the most fundamental way to do that is to revisit the centerpiece of the Constitution, the doctrine of enumerated powers. If this subcommittee were to do that, it would soon discover, I submit, that much of the regulation that plagues property owners across this nation today—and not property owners alone, let me note—is unconstitutional because undertaken without explicit constitutional authority. Right from the start, that is, there is a constitutional problem. A Congress imbued with the idea that we need to relimit government in fundamental ways, as this Congress surely is, should appreciate that to go forward we need first to look back, to our founding principles. And what better part of Congress to do that than this Subcommittee on the Constitution?1

But even if Congress were to do nothing about relimiting its power in so fun. damental a way, even if it were to continue on the regulatory path it has followed for most of this century, there would remain the problem of what to do when the exercise of such overweening power takes property-and the courts, acting almost as if they were extensions of the political branches, refuse to order the compensation the Constitution requires. This brings me to my principal concern in these hearings, that Congress make crystal clear its view that the Fifth Amendment's Takings Clause is meant to compensate owners when regulatory takings of otherwise legitimate uses reduce the value of their property.

2. BREATHE NEW LIFE INTO THE TAKINGS CLAUSE The Fifth Amendment's Takings Clause reads: “nor shall private property be taken for public use without just compensation.” As presently interpreted by the Court, that clause enables owners to receive compensation when their entire estate is taken by a government agency and title transfers to the government; when their property is physically invaded by government order, either permanently or tempo

11 have discussed these issues more fully in Roger Pilon, “Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles," 68 Notre Dame Law Review 507 (1993).

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