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The Planet

The Planet


Stretching the Fifth: Takers v. the Constitution

The Planet, July 1994, Volume 1, number 1

Takings advocates base their case on 12 words in the Fifth Amendment to the U.S. Constitution: ". . . nor shall government take private property for public use without just compensation."

But takings bills, environmentalists say, stretch the Constitution far beyond what the Supreme Court, in more than 70 years of rulings, has interpreted it to mean.

"The takings offensive is about politics, not jurisprudence," said Alex Levinson, the Sierra Club's coordinating attorney. "Private property rights are fully protected under the Constitution in the courts, as takings proponents know perfectly well.

"What the Wise Users are really doing," Levinson said, "is wrapping themselves in the Constitution in hopes of sabotaging the public's ability to protect the environment. It's fundamentally dishonest."

Takings advocates' arguments have consistently been shot down in the courts. It is precisely the weakness of their legal case, observers point out, that has caused anti-environmentalists to lobby legislators to effectively rewrite the Constitution in ways more favorable to polluters.

Until a 1922 Supreme Court ruling, the Fifth Amendment's takings clause was interpreted to apply only when the government, exercising its right of eminent domain, physically appropriated and took ownership of private property. The court said in 1922 that compensation is required for "regulatory takings" as well.

At no time, however, have the courts come close to embracing the absolutist claims of the takings campaign.

"Takings advocates are masquerading as champions of property rights,'' Levinson said. "But this has nothing to do with property rights, or the Fifth Amendment to the Constitution. This is a political war against environmental, health and safety protections on which all Americans depend."

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