The government has a
responsibility to control the growth of its power over individual liberty.
James Madison observed the necessity of governmental accountability when he
If men were angels, no government would be
necessary. If angels were to govern men, neither external nor internal controls
on government would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: You must first
enable the government to control the governed; and in the next place, oblige it
to control itself.
Nowhere is this balance of responsibility better stated than in the takings
clause. The government is given the power to take property for public uses on
rare occasions when doing so is necessary to provide for the public good, but it
is obliged to control itself by compensating property owners harmed by its
actions. The goal must now be for the government to renew its commitment to
control itself through comprehensive takings reform.
It does not make sense for the judiciary to divorce property such as land from its uses. It is the
expectation for usage of property that gives it its value, for the right of
usage is one of the most important “sticks” in each owner’s bundle of property
rights. To prevent compensation for the element of usage is to prevent
compensation for the greatest element of value in property. The goal of the
just compensation clause is to put the owner in as good a position as he was in
before the governmental taking of property occurred. An owner is not returned
to his original position when his property is devalued and an economically less
beneficial use is foisted unto him.
The need for reform stretches to all levels of government. With increasing control over actions of Michigan’s
citizenry by federal laws and regulations, reform at the federal level is
necessary, and should be encouraged, to achieve a complete system of protection
of property rights. However, one cannot discredit the impact that state and
local actions have on property owners. That power is likely to grow as Congress
returns more control and discretion to the states. For this reason, stronger
property rights protections at the state level are essential to attaining a more
just system of government.
Opponents will argue that reform is too costly to the public coffers. But if laws and regulations which
impede on property rights are truly desired by society, why should the community
not share equally in paying the bill for them? It is certainly not fair or just
for the majority of citizens to impose tremendous burdens on individual property
owners in order to reap a benefit for themselves. The costs to individuals
displaced from their property or precluded from using their land as they see fit
cannot be ignored. Furthermore, a lack of a cohesive policy on takings can also
be costly to the public treasury, as the recent Nordhouse Dunes case
illustrates. Individual rights should never be conditioned on the
willingness of the majority to pay for their protection.
Michigan has an opportunity to set itself up as a leader in property rights reform, as it has
done in areas such as welfare and tax reform. Let us resanctify the ideals of
the Founders and return property to its proper place in the concept of